IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON o "E OF WASHINGTON, ] No. 72660-9-1 2*. Respondent, ) •so DIVISION ONE 1 -Tj ^ *~p -p- v. J5*"Dm UNPUBLISHED OPINION 3E>Lj a^i— DWAYNE WHEELER, JR., s GO —'o ro Appellant. i FILED: April 4, 2016
Trickey, J. — Bill Dwayne Wheeler, Jr. appeals his judgment and sentence
for his conviction of sexual exploitation of a minor. He contends that the evidence
is insufficient to support his conviction. He also contends that the trial court erred
when it denied his motion to dismiss for outrageous government conduct, denied
his motion to dismiss for mismanagement, denied his motion for a mistrial,
admitted evidence in violation of ER 404(b), and did not give a unanimity
instruction. Finding no error, we affirm.
FACTS
In January 2013, the Everett Police Department received citizen complaints about female baristas engaging in lewd conduct at two drive-through Grab-N-Go espresso stands. The Grab-N-Go espresso stands are "bikini barista" stands, where the baristas dress in lingerie or bikinis. One stand is located on Everett Mall
Way in the city of Everett. The other stand is located on Broadway Avenue in the city of Everett. Wheeler and James Wiley are co-owners of Grab-N-Go Espresso, Inc. Wheeler owns the Everett Mall stand, and Wheeler and Wiley own the
Broadway stand.
In response to the complaints, the Everett Police Department's Special No. 72660-9-1 / 2
Investigations Unit began an undercover investigation. On several occasions in
January and February 2013, Detective Jeffrey Nevin visited the espresso stands
and posed as a customer. During these visits, he observed female baristas
engaging in sexually explicit conduct while serving customers. He saw baristas
expose their breasts and other intimate areas to customers in exchange for tips.
On many ofthese occasions, the baristas exposed themselves to Detective Nevin.
He captured several of these incidents on video.
On one of Detective Nevin's visits, M.S. was working. While waiting in the
line of cars, Detective Nevin watched M.S. expose her breasts to the customer in
front of him. Detective Nevin then pulled up to the window. After making small
talk, Detective Nevin asked M.S. if he could "get what the customer in front of [him]
had."1 M.S. climbed onto the windowsill and told Detective Nevin to put money in
her underwear. He complied. M.S. then exposed her breasts to the detective and
told him to come back and visit her.
After several weeks of undercover investigation, the detectives arrested the
baristasfor violating the city of Everett's adult cabaret and lewd conduct laws. After the arrests, the detectives learned that one of the baristas they arrested—M.S.—
was 16 years old. The other baristas were adults. At this point, the detectives decided to shift their investigation to the owners of the stands.
Thereafter, the State charged Wheeler with one count of sexual exploitation
of a minor. It alleged that Wheeler "on or about the 1st day of January, 2013, through the 20th day of February, 2013, aided, invited, employed, authorized, and
1 Report of Proceedings (RP) (July 23, 2014) at 162. 2 No. 72660-9-1 / 3
caused a minor, to wit: M.S. ... to engage in sexually explicit conduct, knowing
that such conduct would be photographed and part of a live performance."2 The
Snohomish County Prosecuting Attorney and the Washington State Attorney
General's Office gave Detective Nevin immunity for his role in the investigation.
Wheeler moved for a dismissal based on outrageous government conduct.
He argued that Detective Nevin committed a crime by encouraging M.S. to engage
in sexually explicit conduct and that his actions were so outrageous that it violated
due process. The court later denied this motion.
The case proceeded to a jury trial. The State's theory of the case was that
Wheeler invited or caused M.S. to engage in sexually explicit conduct through his
business practices. The State argued that Wheeler was heavily involved in the
operations of the business and that he put standards in place that forced M.S. to
be competitive with other baristas working at the stands. The State argued that
this was all part of Wheeler's plan to make money and to increase sales.
In support of its theory, the State presented testimonyfrom several baristas,
including M.S. In general, the baristas testified about the operations of the business, including pay structure and scheduling. They also testified about
Wheeler's involvement in the business. They explained that Wheeler managed
and monitored the stands, assigned the schedules, and set the rules. Additionally,
the baristas testified about performing sexually explicit shows for customers. They
explained that they earned more money when they performed shows, because
they saw a significant increase in tips.
Clerk's Papers (CP) at 452. No. 72660-9-1/4
The State also presented testimony from Detective Nevin and Detective
Jeffrey Shattuck. Detective Nevin detailed his role in the undercover investigation.
The court admitted several of Detective Nevin's video recordings of the baristas
performing sexually explicit shows. One of these videos depicted M.S. The other
videos depicted adult baristas.
Detective Shattuck testified about recovering footage from a surveillance
system that he had seized from the Everett Mall stand on March 6, 2013. He
testified that he recovered approximately eight days of footage. He explained that
he calculated this by counting back to the oldest recorded footage, which was from
February 26, 2013.
Detective Nevin testified that he reviewed this footage. He stated that he
observed approximately 37 sexually explicit shows in the eight days of footage. From this footage, the court admitted 10 videos clips that showed the baristas engaging in sexually explicit acts. The court excluded another video clip because it was cumulative and prejudicial.
At the close of the State's case, defense counsel informed the court that he
had discovered that the surveillance footage did not include eight days of footage
as the detectives had testified. The footage was missing March 4, 5, and 6 and
contained duplicate footage. Wheeler moved for dismissal based on mismanagement. In the alternative, he moved for a mistrial or to strike Detective Nevin's testimony in its entirety. The court recessed for the parties to determine whether the surveillance system, which was at the Everett Police Department, had the missing footage. No. 72660-9-1 / 5
Later that day, the court conducted a hearing outside the presence of the
jury. Detective Shattuck testified at the hearing that the surveillance system was
now corrupted and no longer worked. The parties were thus unable to determine
whether it had the missing footage. Detective Shattuck also testified that he
provided everything he had downloaded to the State, who in turn, provided it all to the defense.3 He did not think that there ever existed any footage from March 4,
5, and 6. On cross-examination, Detective Shattuck admitted that the surveillance
system was recording when he seized it on March 6 and that there should be footage until that date. He also admitted that if the system had remained plugged in, it is less likely that it would be corrupted.
After hearing argument from the parties, the court denied Wheeler's motions for dismissal, a mistrial, and to strike the testimony of Detective Nevin in its entirety. Over Wheeler's objection, the court issued a curative instruction, directing the jury "to disregard the testimony of Detective Nevin and Detective Shattuck that there was a total of eight days of video surveillance footage from the Everett Mall stand."4 The jury convicted Wheeler as charged. Wheeler appeals. ANALYSIS
Sufficiency
Wheeler contends that the evidence was insufficient to sustain his
conviction. He argues that, at most, the evidence showed that he tried to run a
successful business. We disagree.
Due process requires the State to prove beyond a reasonable doubt all the
3 RP (July 31, 2014) at 38, 51. 4 RP (July 31, 2014) at 119. No. 72660-9-1 / 6
necessary facts of the crime charged. State v. Colquitt, 133 Wn. App. 789, 796,
137 P.3d 892 (2006). "The test for determining the sufficiency of the evidence is
whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found guilt beyond a reasonable doubt." State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "[A]ll reasonable inferences
from the evidence must be drawn in favor of the State and interpreted most strongly
against the defendant." Salinas, 119 Wn.2d at 201. "A claim of insufficiency
admits the truth of the State's evidence and all inferences that reasonably can be
drawn therefrom." Salinas, 119 Wn.2d at 201.
Circumstantial evidence and direct evidence can be equally reliable. State
v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We must defer to the trier
of fact on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness of evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d
970 (2004).
A person is guilty of sexually exploiting a minor if the person "[a]ids, invites,
employs, authorizes, or causes a minor to engage in sexually explicit conduct,
knowing that such conduct will be photographed or part of a live performance."
RCW9.68A.040(1)(b).
The words "aids, invites, employs, authorizes or causes" are not defined in
the statute. In State v. Chester, our Supreme Court defined these terms after
consulting a dictionary. 133 Wn.2d 15, 22, 940 P.2d 1374 (1997). The Supreme
Court also stated that the terms require "some affirmative act of assistance,
interaction, influence or communication on the part of the defendant which initiates No. 72660-9-1 / 7
and results in a child's display of sexually explicit conduct." Chester, 133 Wn.2d
at 22.
Here, to convict Wheeler of sexual exploitation of a minor, the jury had to
find beyond a reasonable doubt that (1) "on or about the 1st day of January, 2013 through the 20th day of February, 2013, [Wheeler] did invite or cause a minor to
engage in sexually explicit conduct;" (2) Wheeler "did know the conduct would be photographed orwould be part ofa live performance;" and (3) "these acts occurred in the State of Washington."5
The court instructed the jury that "'[i]nvite' means to offer an incentive or
inducement; and requires some affirmative act of that nature on the part of the defendant."6 It instructed the jury that "'[c]ause' means to be the cause of, to bring about, orto induce; and requires some affirmative act of that nature on the part of the defendant."7
In this case, there is no dispute that M.S. was a minor and that Wheeler knew that M.S. was 16 years old. There is also no dispute that M.S. engaged in sexually explicit conduct and that the conduct was part of a live performance. M.S. testified to these facts at trial. The contested issue is whether the State presented sufficient evidence to establish that Wheeler invited or caused M.S. to perform the
shows. We conclude that it did.
Testimony attrial established that Wheeler did not pay his baristas an hourly wage. Each barista's pay was based solely on tips. The baristas testified that they
5 CP at 145. 6 CP at 146. 7 CP at 147. No. 72660-9-1 / 8
made significantly less money without giving shows then when they gave shows.
Wheeler scheduled the baristas with the highest sales for the busier and more
desirable shifts. Additionally, Wheeler set a sales quota for each shift. He required
there to be $300 in the till after a weekday shift and $150 in the till after a weekend
shift.8 If the barista did not make her daily sales quota, Wheeler required her to
make up the difference. This evidence supports the State's theory that Wheeler
invited or caused M.S.'s conduct by setting up a business model that rewarded
baristas for exposing themselves with better conditions and better income.
M.S.'s testimony further confirms the State's business model theory. M.S.
testified that at the end of each shift, Wheeler would count the till. If the till was
short, Wheeler would "make a comment or say, you need to make sure that you
get your sales up to the volumes of that."9 Significantly, M.S. offered the following
explanation for why she performed sexually explicit shows for customers:
Because there was a standard set by the girls that were doing it, all those things. And there was pressure from [Wheeler] to, you know, you need to make more money and get more customers or you're not going to be on the schedule. And the girls that made the most moneygot puton the schedule.™
M.S. explained that the girls set the standard by "giving other shows, the customers
expect shows."11 And she explained that the girls who gave shows had the most
customers. M.S.'s testimony reveals that Wheeler's comments and practices
invited or caused her to engage in sexually explicit conduct by pressuring her to
make more money and get more customers in order to keep her job.
8 RP (July 24, 2014) at 133. RP (July 24, 2014) at 136. 10 RP (July 24, 2014) at 139-40 (emphasis added). 11 RP (July 25, 2014) at 68. 8 No. 72660-9-1 / 9
Additionally, substantial evidence establishes that Wheeler knew that M.S.
performed shows. M.S. testified that Wheeler was present during discussions
about shows and how to avoid getting caught. She said that she had conversations
about shows in front of Wheeler on two or three separate occasions. M.S. also
testified that at the end of each shift, Wheeler reviewed surveillance footage from
inside the stand. She further testified that she showed her breasts to customers a
couple times per shift. Moreover, another barista testified that Wheeler told her
that M.S. would let customers touch her and that M.S. performed shows. She
testified that Wheeler knew this because he could monitor the stand's surveillance
footage remotely from his cell phone.
Viewing this evidence in the light most favorable to the State, we conclude
that it is sufficient to establish that Wheeler invited or caused M.S. to engage in
sexually explicit conduct and that he knew it would be part of a live performance.
Wheeler points to evidence in the record that negates the State's theory.
For example, the evidence established that one barista did not perform shows.
Additionally, several baristas testified that Wheeler told them not to do shows. But
we must defer to the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of evidence. Thomas, 150 Wn.2d at 874-75.
Accordingly, we reject this argument.
Outrageous Conduct
Wheeler contends that the trial court erred when it denied his motion to
dismiss the charge against him based on outrageous government conduct. He
relies on State v. Lively. 130 Wn.2d 1,19, 921 P.2d 1035 (1996), to assert that No. 72660-9-1/10
outrageous government conduct violated his due process rights.12 We disagree. "[OJutrageous conduct is founded on the principle that the conduct of law enforcement officers and informants may be 'so outrageous that due process
principles would absolutely bar the government from invoking judicial processes to obtain a conviction.'" Lively, 130 Wn.2d at 19 (quoting United States v. Russell,
411 U.S. 423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973)). Forpolice conduct
to violate due process, "the conduct must be so shocking that it violates fundamental fairness." Lively, 130 Wn.2d at 19. Examples of outrageous conduct
include "those cases where the government conduct is so integrally involved in the offense that the government agents direct the crime from beginning to end, or where the crime is fabricated by the police to obtain a defendant's conviction, rather than to protect the public from criminal behavior." Lively, 130 Wn.2d at 21. A claim based on outrageous conduct requires "more than a mere demonstration of flagrant police conduct." Lively, 130 Wn.2d at 20. "Public policy allows for some deceitful conduct and violation of criminal laws by the police in order to detect and eliminate criminal activity." Lively, 130 Wn.2d at 20. "Dismissal based on outrageous conduct is reserved for only the most egregious circumstances." Lively, 130 Wn.2d at 20.
In reviewing a defense of outrageous government conduct, the court evaluates the conduct based on the totality of the circumstances. Lively, 130 Wn.2d at 21. There are several factors to consider when determining whether
n wheeler moved for dismissal pursuant to CrR 8.3(b) as well as the state and federal constitutions. On appeal, however, he relies solely on the state and federal constitutional right to due process to argue that dismissal was warranted. 10 No. 72660-9-1 /11
police conduct offends due process: (1) "whether the police conduct instigated a
crime or merely infiltrated ongoing criminal activity," (2) "whether the defendant's
reluctance to commit a crime was overcome by pleas of sympathy, promises of
excessive profits, or persistent solicitation," (3) "whether the government controls
the criminal activity or simply allows for the criminal activity to occur," (4) whether
the police motive was to prevent crime or protect the public," (5) "whether the government conduct itself amounted to criminal activity or conduct 'repugnant to a sense of justice.'" Lively, 130 Wn.2d at 22. Whether the State has engaged in outrageous conduct is a matter of law, not a question for the jury. Lively, 130 Wn.2d at 19.
In State v. Lively, our Supreme Court concluded that the State's actions
constituted outrageous conduct in violation of the defendant's due process rights. 130 Wn.2d at 1. There, the State charged Amy Lively with two counts of delivery
of cocaine after she made two deliveries at the request of the State's informant.
At the time of the offenses, Lively was raising two small children alone. She had become addicted to cocaine and alcohol at age 14 and had sought treatment
several times. Lively met the police informant at an Alcoholics Anonymous/Narcotics Anonymous meeting. She had recently attempted suicide and was emotionally distraught. The informant asked Lively out on a date two weeks after they met, and the two developed a close relationship and moved in together. The informant repeatedly asked Lively to obtain cocaine for him. Lively, 130 Wn.2d at 6-7. Lively had no criminal history prior to the events of the case and "no apparent predisposition" to engage in such conduct. Lively, 130 Wn.2d at
11 No. 72660-9-1/12
15. She ultimately complied with the informant's requests, and the State
subsequently brought charges.
Relying on the factors outlined earlier, the Supreme Court determined that
the State's conduct warranted dismissal of the charges. First, the informant did
not infiltrate an ongoing criminal activity but instead established a relationship with
Lively for the purpose of instigating a crime. Lively, 130 Wn.2d at 23. Second,
Lively's reluctance to commit a crime was purposely overcome by the State by
taking advantage of her emotional reliance on the informant. Lively, 130 Wn.2d at
24-25. Third, the informant controlled the criminal activity "from start to finish."
Lively, 130 Wn.2d at 26. Fourth, the government conduct demonstrated a greater
interest in creating crimes to prosecute than in protecting the public from criminal behavior. Lively, 130 Wn.2d at 26. Fifth, and most importantly, the conduct was
"so outrageous that it shock[ed] the universal sense ofjustice." Lively, 130 Wn.2d
at 26.
The conduct in this case is far different from that in Lively. There, the
informant contacted an emotionally vulnerable woman with no predisposition to
engage in illegal activity for the sole purpose of involving her in police sponsored drug activity. There was no demonstration that she was involved in criminal activity prior to the State's involvement. Here, in contrast, Detective Nevin did not establish a relationship with M.S. for the purpose of instigating a crime. Rather, he was at the espresso stand to investigate ongoing criminal activity. M.S. was already engaging in the illegal activity when Detective Nevin contacted her. In fact, Detective Nevin directly observed M.S. engage in illegal activity before he asked
12 No. 72660-9-1/13
her to repeat the illegal conduct. Additionally, in contrast to Lively, M.S. was not
reluctant to engage in such conduct. She agreed after Detective Nevin asked her
once. And although Detective Nevin initiated M.S.'s conduct on that one occasion,
he did not control her criminal activity from start to finish.
Further, Detective Nevin's motive was to prevent further crime. The
detectives were responding directly to citizen complaints. Unlike in Lively, the
government conduct in this case demonstrates a greater interest in preventing
criminal behavior than in initiating it.
As the State admits, Detective Nevin's conduct was technically a crime. It
is not a defense to a charge of sexual exploitation of a minor that the person did
not know the alleged victim's age. RCW 9.68A.110(3). Nor is it a defense that the
individual was involved in law enforcement activities in the investigation of criminal
offenses. RCW 9.68A. 110(1).
But as Lively noted, public policy allows for some deceitful conduct and
violation of criminal laws by the police in order to detect and eliminate criminal
activity. 130 Wn.2d at 20. Washington courts have rejected the outrageous
conduct defense even in cases where police engage in illegal activities. State v.
Markwart, 182 Wn. App. 335, 349-50, 329 P.3d 108(2014). Forexample, in State
v. Jessup, this court held that dismissal was not warranted based on the fact that
a government agent engaged in acts of prostitution. 31 Wn. App. 304, 313-14, 641 P.2d 1185 (1982). Here, there is no evidence that Detective Nevin knew that
M.S. was underage or that any ofthe baristas working at the stand were underage.
Detective Nevin's conduct was not so outrageous that it violates fundamental
13 No. 72660-9-1 /14
fairness. The circumstances of this case do not support dismissal.
Mismanagement
Wheeler argues that the trial court abused its discretion when it denied his
CrR 8.3(b) motion for dismissal based on the State's purported mismanagement
of a video surveillance system that it had in evidence. We disagree.
CrR 8.3(b) provides:
The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's rights to a fair trial.
In order to succeed on a CrR 8.3(b) motion to dismiss, the defendant must
show by a preponderance of the evidence "(1) 'arbitrary action or governmental
misconduct' and (2) 'prejudice affecting the defendant's right to a fair trial.'" State
v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Michielli,
132 Wn.2d 229, 239-40, 937 P.2d 587 (1997)). "Although mismanagement is
sufficient to establish governmental misconduct, dismissal under CrR 8.3(b) is an
extraordinary remedy used only in truly egregious cases." State v. Flinn, 119 Wn.
App. 232, 247, 80 P.3d 171 (2003).
We review a trial court's decision to dismiss charges under the abuse of
discretion standard. Michielli, 132 Wn.2d at 240. A trial court abuses its discretion
when its decision is manifestly unreasonable or is exercised on untenable grounds
or for untenable reasons. Michielli, 132 Wn.2d at 240.
Here, as we explained earlier, the footage from the surveillance system did
not include eight days of footage as the detectives had testified. The footage was
14 No. 72660-9-1/15
missing March 4, 5, and 6. At trial, the parties were unable to determine whether
the surveillance system in evidence had the missing footage, because the
surveillance system had become corrupted. Detective Shattuck did not know the
reason for this, but he testified that if the surveillance system had been plugged in,
it was less likely that it would be corrupted. Based on this, Wheeler moved for
dismissal under CrR 8.3(b) for the State's failure to maintain the surveillance
system by keeping it plugged in.
The trial court denied Wheeler's motion. It noted that the issue of the
missing footage should have been explored earlier. Additionally, it stated that the significance of this footage was speculative. And it stated that because the record was unclear about why there was no footage from March 4, 5, and 6, "the notion that there is real mismanagement on this particular point is speculative."13 The court determined that the error could be corrected with a curative instruction.
The court's ruling was not an abuse of discretion. The State provided Wheeler with all of the surveillance footage that it had downloaded. It is unclear
whether footage from March 4, 5, and 6 ever existed on the surveillance system. It is also unclear whether the State was responsible for the lack of any footage
from those days. Accordingly, this record does not show by a preponderance of the evidence mismanagement on the part of the State.
Further, Wheeler fails to show that the alleged mismanagement prejudiced his right to a fair trial. As the court noted, the significance of any missing footage was speculative. Moreover, the trial court's instruction to the jury cured any
13 RP (July 31, 2014) at 103. 15 No. 72660-9-1/16
prejudice resulting from the erroneous testimony. Despite Wheeler's assertion to
the contrary, the trial court did not place the burden on the defense to correct the
State's mismanagement. The facts of this case do not show egregious conduct
warranting dismissal.
Mistrial
Wheeler argues that the court abused its discretion when it denied his
motion for a mistrial based on mismanagement. We disagree.
To determine whether a trial irregularity warrants a new trial, we examine
the seriousness of the irregularity, whether it involved cumulative evidence, and
whether the trial court properly instructed the jury to disregard it. State v. Emery.
174 Wn.2d 741, 765, 278 P.3d 653 (2012). "[A] trial court should grant a mistrial
only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be fairly tried." Emery. 174 Wn.2d at 765.
We review the trial court's denial of a motion for a mistrial for abuse of
discretion. Emery. 174 Wn.2d at 765. Denial of a mistrial should be overturned
only when there is a "'substantial likelihood'" that the error affected the jury's verdict. State v. Rodriguez. 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002) (internal
quotation marks omitted) (quoting State v. Russell. 125 Wn.2d 24, 85, 882 P.2d 747(1994)).
Here, the trial court did not abuse its discretion when it denied Wheeler's
motion for a mistrial after the parties discovered that there was missing
surveillance footage and the detectives erroneously testified that there was eight days of footage. The admission of the erroneous testimony was not serious
16 No. 72660-9-1/17
because the precise number of days of video footage was minimally relevant to
the issues before the jury. Further, the detectives' mistaken understanding about
the number of days of footage did not affect their testimony about the content of
the footage. And the detectives' testimony about the content of the footage was
cumulative with much of the other evidence presented at trial. Moreover, the
erroneous testimony was cured by the court's instruction to "disregard the
testimony of Detective Nevin and Detective Shattuck that there was a total of eight
days of video surveillance footage from the Everett Mall stand."14 In short, there
is not a "substantial likelihood" that the error affected the jury's verdict.
False Testimony
Wheeler argues that his conviction should be reversed because "the case
went to the jurywith false testimony."15 We disagree.
The due process clause of the Fourteenth Amendment imposes on
prosecutors a duty not to introduce perjured testimony or use evidence known to be false to convict a defendant. Napue v. People of State of HI.. 360 U.S. 264,
269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). This duty requires the prosecutor to
correct state witnesses who testify falsely. Napue. 360 U.S. at 269; State v.
Finnegan, 6 Wn. App. 612, 616, 495 P.2d 674 (1972). "A conviction obtained by
the knowing use of perjured testimony is fundamentally unfair and must be set
aside if there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury." State v. Larson. 160 Wn. App. 577, 594, 249
P.3d 669 (2011).
14 RP (July 31, 2014) at 119. 15 Opening Br. of Appellant at 39 (boldface and capitalization omitted). 17 No. 72660-9-1/18
Here, the State did not use false evidence to obtain a conviction. Although
both Detective Nevin and Detective Shattuck erroneously testified that they
recovered and reviewed eight days of surveillance footage, the court corrected this
testimony with a curative instruction "to disregard the testimony of [the two
detectives] that there was a total of eight days of video surveillance footage from
the Everett Mall stand."16 We presume that the jury followed the court's
instructions. Emery, 174 Wn.2d at 766.
Wheeler argues that the curative instruction was inadequate. He asserts
that the jury "was not told that the footage contained duplication or that footage
that was on the system when the police took it was lost and could not be
recovered."17 And he asserts that the instruction "ignores that there were
substantial problems with the footage that was captured and the testimony that
thirty-seven shows by baristas were on the footage."18 But there is no showing on this record that the missing footage affected the
detectives' testimony about the content of the remaining footage. Thus, Wheeler fails to show that the detectives' testimony was false. Moreover, testimony about
the precise number of days of video or precise number of shows by the baristas on the footage was minimally relevant. Thus, there is not a reasonable likelihood that false testimony on these issues could have affected the judgment ofthe jury. Evidentiary Ruling
Wheeler argues that the trial court abused its discretion in admitting
16 RP (July 31, 2014) at 119. 17 Opening Br. of Appellant at 39. 18 Reply Br. of Appellant at 18. 18 No. 72660-9-1/19
evidence of alleged prior bad acts of the adult baristas. Although he acknowledges
that some of this evidence was relevant and admissible, he claims that the quantity
of evidence was unfairly prejudicial. We reject his claim.
Under ER 404(b), "Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith." Such evidence may be admissible for other purposes, however, such
as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." ER 404(b). Another proper purpose is to show
the existence of a common scheme or plan. State v. Gresham, 173 Wn.2d 405,
421-22, 269 P.3d 207 (2012).
To admit evidence of a person's prior misconduct, the trial court must "'(1)
find by a preponderance ofthe evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and
(4) weigh the probative value against the prejudicial effect.'" Gresham. 173 Wn.2d at 421 (quoting State v. Vv Thang. 145Wn.2d 630, 642, 41 P.3d 1159 (2002)). We review a trial court's decision to admit evidence under ER 404(b) for
abuse of discretion. State v. Fisher. 165 Wn.2d 727, 745, 202 P.3d 937 (2009). A
trial court abuses its discretion only when its decision is manifestly unreasonable
or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,
482 P.2d 775 (1971).
Here, prior to trial, Wheeler moved in limine pursuant to ER 404(b) to exclude any evidence that adult baristas performed "shows" or engaged in lewd
19 No. 72660-9-1 / 20
conduct.19 He argued that such evidence was not indicative of a common scheme
or plan, because M.S. was the only minor. He also argued that the evidence was
not relevant and was more prejudicial than probative.
The trial court questioned whether ER 404(b) applied, noting that the
conduct was not Wheeler's prior conduct but rather was conduct of third parties.
Nonetheless, it applied ER 404(b) by analogy and determined that the evidence
was admissible. First, it stated that at least a portion of the evidence was
admissible under the res gestae exception. The court then conducted a thorough
analysis of the four ER 404(b) factors on the record. Itconcluded that the evidence
was relevant to show a common scheme, plan, or business practice at the
espresso stands and to show Wheeler's knowledge. The court noted that the
evidence was prejudicial in the sense that it was "unpleasant," but because the
evidence was not of Wheeler's actions, the court reasoned that it was not the same
kind of "direct prejudice."20 Because the relevancy of the evidence was
"significant," the court determined that the potential relevance outweighed the
potential prejudice and the evidence was admissible.21 At trial, the court admitted testimony from two detectives and five baristas
detailing the adult baristas' sexually explicit shows. It admitted several video recordings taken by Detective Nevin that depicted the baristas giving sexually
explicit shows. And it admitted several video clips from the Everett Mall stand's surveillance system that depicted the baristas giving sexually explicit shows.
19 CP at 205. 20 RP (July 23, 2014) at 36-37. 21 RP (July 23, 2014) at 37. 20 No. 72660-9-1/21
Wheeler did not object to any of this evidence on the basis that it was cumulative.
Nonetheless, the court excluded one clip from the surveillance system due to its
cumulative and prejudicial nature.
Assuming that Wheeler preserved the argument he raises on appeal, we
conclude that the trial court properly exercised its discretion when it admitted this
evidence. As the court stated, evidence that the adult baristas performed shows
was highly relevant. Wheeler concedes this point, stating that "[s]ome testimony
about the business structure and culture of the espresso stands was relevant to
both guilt and innocence of the charged crime."22 Further, this evidence was less
likely to invoke a negative emotional response toward Wheeler because itwas not
evidence of his prior conduct but rather the conduct of third parties. Finally, the
record shows that the court carefully considered the nature of each video clip and
its probative value before determining whether it should be admitted. It did not
abuse its discretion when it excluded only one video clip.
Unanimity Instruction
Wheeler argues that his conviction must be reversed because the trial court
failed to give a unanimity instruction. We disagree.
Criminal defendants in Washington are entitled to a unanimous jury verdict.
State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). When the
State presents evidence of several acts that could form the basis of one count
charged, either the State must elect the act it relies on for the conviction or the
court must instruct the jury to agree on a specific criminal act. State v. Kitchen,
22 Opening Br. of Appellant at 28. 21 No. 72660-9-1 / 22
110 Wn.2d 403, 409, 756 P.2d 105 (1988). If neither of these alternatives occurs,
a constitutional error arises because of the possibility that some jurors may have
relied on one of the criminal acts while other jurors relied on another, resulting in
a lack of unanimity on all of the elements necessary for a conviction. State v.
Greathouse, 113 Wn. App. 889, 916, 56 P.3d 569 (2002).
No election or unanimity instruction is required, however, if the evidence
shows that the several acts constitute a "'continuing course of conduct.'" State v.
Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989) (quoting State v. Petrich, 101
Wn.2d 566, 571, 683 P.2d 173 (1984)). We evaluate the facts in a commonsense
manner to decide whether criminal conduct constitutes a continuing course of
conduct. Handran, 113 Wn.2d at 17.
Generally, where the evidence involves conduct at different times and
places, then the evidence tends to show several distinct acts rather than a
continuing course ofconduct. Handran. 113 Wn.2d at 17. Merely having the same
victim is not enough in itself to demonstrate that the offense was one continuing
offense. State v. Fiallo-Lopez. 78 Wn. App. 717, 724, 899 P.2d 1294 (1995). But
"evidence that a defendant engages in a series of actions intended to secure the
same objective supports the characterization of those actions as a continuing course of conduct rather than several distinct acts." Fiallo-Lopez. 78 Wn. App. at
724.
In State v. Barrington. this court concluded that the defendant's acts were
a continuing course of conduct rather than separate distinct acts. 52 Wn. App.
478, 481-82, 761 P.2d 632 (1988). There, the defendant promoted a prostitution
22 No. 72660-9-1 / 23
enterprise over three months, involving one woman and a "single objective—to
make money." Barrington. 52 Wn. App. at 481. This court reasoned that the
incidents of prostitution "were primarily illustrative of the nature of the enterprise
rather than solely descriptive of separate distinct acts or transactions." Barrington,
52 Wn. App. at 481. It concluded that neither a unanimity instruction nor an
election was required. Barrington, 52 Wn. App. at 482.
Division Two applied Barrington's reasoning in State v. Knutz, 161 Wn. App.
395, 409, 253 P.3d 437 (2011). Over the course of three years, Lisa Knutz had obtained several cash loans from Robert J. Von Gruenigen after proffering various
lies. Knutz, 161 Wn. App. at 399-400. Division Two, reasoning that "Knutz used Von Gruenigen 'to promote an enterprise with a single objective'—to obtain money through deceit," concluded that Knutz's several acts of fraud constituted a continuing course of conduct. Knutz, 161 Wn. App. at 409. Here, M.S. testified that she worked at the Broadway stand twice and the Everett Mall stand five to eight times. She testified that she showed her breasts to customers "[a] couple times per shift."23 Wheeler argues that each time M.S. exposed her breasts was a separate act. In response, the State asserts that the facts of this case show a continuing course of conduct for which no unanimity
instruction was required.
We agree with the State. The facts of this case show a continuing course of conduct. Barrington and Knutz focus on the conduct of the defendant in the course of committing the crime, not on the actions of the victims. Like in those
23 RP (July 24, 2014) at 141. 23 No. 72660-9-1 / 24
cases, Wheeler's conduct showed that he used M.S. to promote an enterprise with
a single objection—to make money through the baristas' sexually explicit acts.
Similar to Barrington. where the incidents of prostitution "were primarily illustrative
of the nature of the enterprise rather than solely descriptive of separate distinct
acts or transactions," the explicit shows by M.S. were also illustrative of the nature
of the enterprise. 52 Wn. App. at 481. Viewed in a commonsense manner, the
evidence supports the conclusion that Wheeler engaged in a continuing course of
conduct. No unanimity instruction was required.
We affirm the judgment and sentence.
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