IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85627-8-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
DARIUS CALEB VILLA,
Appellant.
FELDMAN, J. — A jury convicted Darius Caleb Villa of two counts of first
degree child molestation and one count of third degree child molestation. On
appeal, Villa argues (1) the trial court erroneously denied his motion to suppress
statements he made to a detective, (2) the trial court gave an erroneous limiting
instruction regarding ER 404(b) evidence, (3) his trial counsel was ineffective in
failing to object to this limiting instruction, (4) his sentence violates equal protection
principles, and (5) cumulative error denied him a fair trial.
As to Villa’s first argument, we conclude the trial court did not err in denying
his motion to suppress his statements to the detective. As to Villa’s second
argument, we conclude the trial court erred in giving a limiting instruction to the
jury that improperly allowed (if not directed) it to consider propensity evidence in
determining whether the State had proven the elements of the charged crimes and No. 85627-8-I
in assessing the witnesses’ credibility. Because this error was not harmless, we
reverse Villa’s convictions and remand for a new trial on all counts without reaching
his other assignments of error.
I
A
Villa and his family are members of the Divine Covenant International
Church, a Christian church located in Burien, Washington. The church frequently
organized an overnight Vacation Bible School (VBS) summer camp where the
attending children would sleep together in tents. In 2008, when Villa was 13 years
old, he attended the VBS with another child, M.J.C., who was 8 years old. M.J.C.
recalls that one night while they were sleeping next to each other in a tent Villa
unzipped M.J.C.’s sleeping bag, pulled M.J.C. on top of him, reached his hand
under M.J.C.’s shorts, and “started rubbing” M.J.C.’s penis over his underwear for
approximately five minutes. M.J.C. remembers a similar incident occurring again
at the 2011 VBS in which Villa unzipped M.J.C.’s sleeping bag while they slept
next to each other in a tent, stuck his hand in M.J.C.’s pants, and began “stroking”
M.J.C.’s penis over his underwear for more than 10 minutes.
Another one of Villa’s church friends, J.P., also recalls Villa touching him in
a similar manner during a sleepover at the Villa house sometime between 2012
and 2015, when Villa was 19 or 20 years old and J.P. was 13 or 14 years old.
During the night while they slept next to each other on Villa’s bed, Villa started
touching J.P.’s thigh and hip area, reached his hands under J.P.’s shorts, and
began “rubbing” J.P.’s penis “up and down” in a “jerking motion.” J.P.’s penis
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became erect, and he could hear Villa making “grunts and sounds of pleasure”
during the incident. This incident lasted around five minutes.
M.J.C. and J.P. did not disclose these events until around 2016, when
M.J.C. approached J.P. and “started opening up about his situation” involving Villa.
M.J.C. and J.P. then shared “stories” about Villa with each other, and they later
discussed these events involving Villa with several of their church friends.
Approximately two years later, following a Sunday school lesson taught by Villa’s
mother, Lolita, M.J.C. told Lolita “everything that happened . . . with [Villa]” and
said he was “sexually assaulted” by Villa. 1 Lolita was “heartbroken that it
happened” and invited M.J.C. to the Villa house to “pray about” the incident
alongside Villa and his father, Robert. At the meeting, Villa’s parents told Villa and
M.J.C. to “forgive each other.” M.J.C. then told Villa, “I’m here today . . . in front of
your parents because . . . you touched me inappropriately." According to M.J.C.,
Villa “admitted what he did was wrong,” “apologized and said he’s not going to do
it again,” and said, “I’m sorry for what I did to you, I was just . . . following my lust.”
Later in 2019 (after Villa was charged in this case), Villa left a voicemail on M.J.C.’s
phone stating, “[F]rom the bottom of my heart, I just want to ask for your
forgiveness. I know it’s all in the past, but I just wanted to tell you now . . . I’m truly
sorry for all the . . . things that . . . I’ve done towards you.”
In early 2019, one of M.J.C. and J.P.’s friends informed the church’s board
of directors about their accusations against Villa. The board, which included
Robert and Villa’s aunt, Leida, chose three of its members, including M.J.C.’s
1 Because Villa’s family members share the same last name, we refer to them by their first names
for clarity. And because Darius is the defendant here, we refer to him as Villa.
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father, to conduct an internal investigation into the allegations. M.J.C.’s father
spoke to his son about his allegations. The investigators also met with J.P. and
recorded a statement in which J.P. detailed his accusation against Villa. The
investigators then met with the Villa family at their house. During this meeting,
which lasted several hours, the investigators confronted Villa with allegations that
he had “touched some of these kids in the youth group inappropriately,” played the
recording of J.P.’s interview, and asked Villa “[w]hy do you think they are saying
this towards you” and “[d]o you admit to these statements?” Villa initially denied
the accusations but eventually said “I just want to get this . . . over with” and “I do
not remember. But if—perhaps, if anything that I did towards [J.P.] or to any of
these kids, I’m truly sorry.” Villa also said, “[W]hat happened to [J.P.]. . . . It was
true.” The church leaders then organized a “reconciliation” meeting at the church
with Villa’s family, J.P.’s family, and other church members (but not M.J.C., who
had since moved overseas). During this meeting, Villa was “contrite,” told J.P. he
was “sorry that it happened,” and asked J.P. to “please forgive me.”
Following this meeting, a church board member reported M.J.C.’s and J.P.’s
allegations to Child Protective Services, which referred the matter to law
enforcement in March 2019. The case was assigned to Marylisa Priebe-Olson, a
detective with the King County Sheriff’s Office, who spoke with M.J.C., J.P., and
other church members. Priebe-Olson then contacted Villa to get his statement,
and they agreed to meet for an interview in Priebe-Olson’s car outside of Villa’s
workplace over his lunch break. During the interview, Villa acknowledged the
accusations that he had touched M.J.C. and J.P. “inappropriately” and told Priebe-
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Olson that he had apologized to them and asked them for forgiveness. But when
Priebe-Olson asked Villa, “What did you apologize for and ask for forgiveness for,”
Villa replied, “I don’t recall what I did.” After Priebe-Olson mentioned that M.J.C.
and J.P. “can’t forgive somebody if somebody is not taking responsibility,” Villa
initially stated he may have “accidentally” touched J.P.’s penis and suggested, “I
was . . . not conscious of what I was doing then.” Villa then described how he
“grabbed [J.P.] by his thigh and then worked my way up to his genital organ” and
remembered “fondling him around in that area.” As to M.J.C., Villa stated that
“back with the camping, it might have been the same thing with . . . the sleepover
at our camp site . . . where I . . . toss and turn over, like, I . . . probably put my
shoulders around him.” But Villa denied pulling M.J.C. on top of him and touching
his penis.
B
In September 2019, the State charged Villa with two counts of first degree
child molestation relating to the alleged incidents involving M.J.C. in 2008 and
2011 and one count of third degree child molestation relating to the incident
involving J.P. which allegedly occurred sometime between 2012 and 2015. Before
trial, the State moved under ER 404(b) to “use the evidence that will be admitted
throughout the trial as it relates to each count against each victim . . . as evidence
of 404(b) under common scheme or plan” and “to show motive, since the State is
having to prove in this case that the touching was done for sexual gratification
purposes.” The prosecutor’s motion also sought permission to present evidence
of a fourth, uncharged incident involving Villa and M.J.C. sometime after 2008, in
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which Villa allegedly awoke M.J.C. during a sleepover at the Villa house and kissed
him. In response, defense counsel argued that the ER 404(b) exceptions for
common scheme or plan and motive do not apply here and noted, “I don’t think
they [the prosecutor] can do a 404(b) argument . . . that we’re going to use Count
3 against Count[s] 1 and 2 and Counts 1 and 2 against Count 3 . . . [The prosecutor
is] trying to combine them all in at this point and make a propensity argument.”
Defense counsel further stated “if the Court is going to allow that testimony, I would
ask that . . . these cases be severed.”
The trial court denied Villa’s motion to sever, granted the State’s ER 404(b)
motion, and ruled “the evidence presented . . . does come in under common
scheme or plan and motive for sexual gratification.” Defense counsel then stated,
“I will ask for a limiting instruction to be imposed. . . . [I]t is something that needs
to be done.” Earlier, in defending the State’s ER 404(b) motion and opposing
Villa’s motion to sever, the prosecutor had stated “a limiting instruction is
something that would be more appropriate in terms of a . . . jury instruction that the
State would be bound by” because it would “make it very clear to the jurors what
the evidence is to be considered for and the reasons for that.” Consistent with the
prosecutor’s earlier suggestion, the trial court agreed a limiting instruction would
be “appropriate given the Court’s ruling” and “can really assist in keeping jurors
focused on what their obligations are and how they are to consider the evidence
being presented.” Lastly, the court also denied Villa’s CrR 3.5 motion to suppress
the statements he made to Priebe Olson during the interview in her car.
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During trial, M.J.C. testified to the two charged incidents and one uncharged
incident involving him and Villa, and J.P. likewise testified to his incident involving
Villa. The State also played the audio of Villa’s conversation with Priebe-Olson.
Villa then testified he did not remember touching M.J.C. or J.P. in a sexual manner
and denied having done so. Villa explained that he apologized to M.J.C. and J.P.
not because he admitted the truth of their accusations but rather because
“forgiveness and reconciliation” are “part of our practice and our faith” and they
had “perceived that I did something wrong.” Villa and Leida also testified that Villa
slept in Leida’s cabin during the 2008 VBS, not in the tent with M.J.C.
After the close of evidence, the prosecutor submitted a proposed limiting
instruction regarding the ER 404(b) evidence. The instruction states:
Certain evidence has been admitted in this case for specific purposes, including evidence related to the defendant’s motive and/or common scheme or plan. This evidence consists of testimony from M.J.C. and J.P., concerning incidents alleged to have occurred between 2008 and 2015.
This evidence and testimony may be considered by you for purposes of assessing the credibility of the witnesses, assessing whether the State has proven the elements of the crimes charged, and also for assessing the defendant’s motive and/or common scheme or plan.
Any evaluation of this evidence during your deliberations must be consistent with this instruction.
Defense counsel questioned the instruction’s reference to “motive,” and the trial
court clarified that its pretrial ruling applied to motive. The court then e-mailed the
final instructions, including the limiting instruction, to the parties, and defense
counsel replied, “Looks to comply with what the court stated.”
So instructed, the jury convicted Villa on all counts. The sentencing court
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subsequently imposed concurrent, determinate sentences of 98 months each on
counts 1 and 2 and 54 months on count 3. Villa appeals.
II
Villa first argues the trial court erroneously admitted statements he made to
Priebe-Olson, which he claims were involuntary. We disagree.
Both the United States and Washington constitutions provide that persons
cannot be compelled in a criminal case to give evidence against themselves. State
v. Unga, 165 Wn.2d 95, 100, 196 P.3d 645 (2008) (citing U.S. Const. amend. V;
Wash. Const. art. 1, § 9). A defendant’s incriminating statements may nonetheless
be admissible if they voluntarily waive their constitutional right to remain silent. Id.
Whether a defendant’s statements are voluntary depends on the totality of the
circumstances, which may include “the ‘crucial element of police coercion;’ the
length of the interrogation; its location; its continuity; the defendant’s maturity,
education, physical condition, and mental health; and whether the police advised
the defendant of the rights to remain silent and to have counsel present during
custodial interrogation.” Id. at 101 (quoting Withrow v. Williams, 507 U.S. 680,
693-94, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993)). “[W]hen reviewing a trial
court’s conclusion of voluntariness, an appellate court determines ‘whether there
is substantial evidence in the record from which the trial court could have found
that the confession was voluntary by a preponderance of the evidence.’” State v.
Rafay, 168 Wn. App. 734, 757-58, 285 P.3d 83 (2012) (quoting State v. Broadway,
133 Wn.2d 118, 129, 942 P.2d 363 (1997)).
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Here, there is substantial evidence in the record from which the trial court
could have found by a preponderance of the evidence that Villa’s statements to
Priebe-Olson were voluntary. At the time of the interview, Villa was 24 years old
and had obtained an associate’s degree. When Priebe-Olson initially contacted
Villa to “get his statement,” she told him she was a “detective” assigned to a case
regarding “a meeting at the church.” Villa agreed to meet with Priebe-Olson, and
this meeting took place over Villa’s lunch break outside of his work in Priebe-
Olson’s car. During this meeting, Priebe-Olson wore plain clothes and kept the
vehicle doors unlocked. Before the interview, Priebe-Olson informed Villa that he
was not under arrest, read a form advising Villa of his Miranda 2 rights—including
his rights to remain silent and to have counsel present during the interview—asked
Villa if he understood these rights, and told him, “If you don’t want to give me your
side of the story, then you don’t sign [the form] and you leave.” Villa replied that
he understood his rights and initialed and signed the form. Ultimately, the interview
lasted only 42 minutes.
Notwithstanding this evidence showing voluntariness, Villa argues his
statements were involuntary due to Priebe-Olson’s “material misrepresentation of
the legal consequences of Villa responding to her inquiries.” In support of this
argument, Villa points to the following statement by Priebe-Olson:
I know when people are younger, that when they struggle with some of that stuff and they just have curiosities, that, you know, they just – they do – it’s kind of like playing doctor or just testing the waters, because you’re not sure. A lot of that is kind of normal for younger folk. . . . As long as it doesn’t continue into you know, your 20s and 30s, that’s when . . . there’s a problem.
2 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d. 694 (1966).
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According to Villa, Priebe-Olson’s statement that “there’s a problem” only if such
conduct extends past the age of 20 was essentially a “promise” that he would not
be prosecuted for the alleged conduct, some of which occurred when Villa was
much younger.
Villa’s argument is unconvincing in light of our Supreme Court’s decision in
Unga, which squarely addresses these issues. 165 Wn.2d at 109-11. In Unga, a
detective investigating a stolen, graffitied vehicle told the defendant he “would not
be charged ‘with the graffiti’” if he told the detective about “another crime.” 165
Wn.2d at 98-99, 105 n.2. After the defendant confessed to writing the graffiti and
being a passenger in the stolen car, the State charged him with taking a motor
vehicle without permission. Id. at 98-99. The defendant moved to suppress his
statements to the detective on voluntariness grounds, claiming he interpreted the
detective’s statement as meaning he “would not be charged with any crime in
connection with the car.” Id. at 99.
On appeal from the trial court’s denial of the motion, our Supreme Court
reiterated that “[w]hether any promise has been made must be determined and, if
one was made, the court must then apply the totality of the circumstances test and
determine whether the defendant’s will was overborne by the promise, i.e., there
must be a direct causal relationship between the promise and the confession.” Id.
at 101-02. The court ultimately held the detective’s promise not to prosecute the
defendant for any offense relating to vandalism of the car, i.e., the graffiti, did not
render the defendant’s confession to stealing the car involuntary under the totality
of the circumstances. As the court explained, the defendant was given Miranda
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warnings, he was old enough (16 ½ years old) to understand his rights and the
consequences of waiving them, the questioning only lasted 30 minutes, the door
to the interrogation room was left open, the officer was not in uniform, and the
officer did not use intimidating tactics such as raising his voice, using a threatening
tone, or badgering the defendant. Id. at 109-11.
Priebe-Olson’s interrogation tactics were substantially less coercive than
those in Unga. Notably, Villa does not assign error to the trial court’s finding that
Priebe-Olson “did not make any promises or threats to him to get Mr. Villa to speak
with her.” Absent an assignment of error to this finding, we must treat it as a verity
on appeal. Unga, 165 Wn.2d at 103. Regardless, Priebe-Olson’s statements
about “hav[ing] curiosities,” “playing doctor,” and “testing the waters” not being “a
problem” during childhood were not a promise not to prosecute. Instead, Priebe-
Olson simply said “a lot of that is kind of normal.” (Emphasis added). At no point
did Priebe-Olson tell Villa that sexually touching children several years younger
than himself was legal or that he would not be prosecuted if he admitted to such
conduct.
Additionally, Priebe-Olson advised Villa of his Miranda rights and told him,
“If you don’t want to give me your side of the story, then you don’t sign [the form]
and you leave.” Like the Unga defendant, Villa was old enough to understand his
rights and the consequences of waiving them, knew Priebe-Olson was a law
enforcement officer investigating allegations of sexual misconduct made against
him, and was questioned for only 42 minutes. And unlike the Unga defendant,
who spoke to law enforcement in an interrogation room after being arrested, Villa
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was not under arrest and agreed to meet Priebe-Olson in a public location. For
these reasons, we are unpersuaded by Villa’s argument that Priebe-Olson’s
purported promise not to prosecute rendered his statements involuntary.
Villa also contends that his statements were involuntary because he only
gave them after Priebe-Olson improperly appealed to his religious beliefs. Villa
points to Priebe-Olson’s remark, after Villa claimed he did not recall the behavior
for which he was seeking forgiveness, that she “grew up in . . . a Lutheran
church . . . believing that you really can’t apologize for something and be forgiven
if you don’t take responsibility for what it is you did.” Villa’s argument is
unpersuasive given the Unga court’s holding regarding such conduct:
A police officer’s psychological ploys such as playing on the suspect’s sympathies, saying that honesty is the best policy for a person hoping for leniency, or telling the suspect that he could help himself by cooperating may play a part in a suspect’s decision to confess, “but so long as that decision is a product of the suspect’s own balancing of competing considerations, the confession is voluntary.”
165 Wn.2d at 102 (quoting Miller v. Fenton, 796 F.2d 598, 605 (3rd Cir. 1986)).
Given the numerous circumstances discussed above indicating that Villa knew
Priebe-Olson was speaking to him in connection with a criminal investigation and
that he could stop speaking to her at any time, Villa’s statements—like those in
Unga—were the product of his own balancing of competing considerations and
thus voluntary.
The cases cited by Villa on this issue are inapposite. In Brewer v. Williams,
430 U.S. 387, 393, 403-05, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977), the Court held
that a murder suspect involuntarily waived his right to counsel where police knew
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he was “deeply religious and an escapee from a mental hospital” but nonetheless
urged him (outside the presence of his attorney) to show them the location of the
victim’s body because her parents “‘should be entitled to a Christian burial for the
little girl who was snatched away from them on Christmas [E]ve and murdered.’”
Similarly, in State v. Wood, 128 S.W.3d 913, 916-18 (Mo. Ct. App. 2004), the court
held that a murder suspect’s confession was involuntary because he was a “deeply
religious man” who had “exhibited signs of mental illness,” including believing that
“the devil was in him and that he wanted the [church] elders to come and cast it
out,” and the interrogator was the suspect’s minister with whom he had a “personal
and priestly relationship.” Unlike these defendants, there is no evidence Villa
suffered from a serious mental illness such that an appeal to his religious
convictions prevented him from weighing the competing considerations of whether
to incriminate himself or remain silent. On this record, the trial court did not err in
denying Villa’s motion to suppress the statements he gave to Priebe-Olson.
Next, Villa argues the trial court committed reversible error in giving the ER
404(b) limiting instruction—instruction 4—because it improperly permitted the
jurors to “consider evidence of each incident as probative of all the offenses” and
“failed to admonish [the jury] to not infer criminal propensity from the evidence.”
We agree.
ER 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
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therewith.” But such evidence may be admissible for “other purposes.” ER 404(b).
One such other purpose is “motive,” which “‘goes beyond gain and can
demonstrate an impulse, desire, or any other moving power which causes an
individual to act.’” State v. Fuller, 169 Wn. App. 797, 829, 282 P.3d 126 (2012)
(internal quotation marks omitted) (quoting State v. Baker, 162 Wn. App. 468, 473-
74, 259 P.3d 270 (2011)). Another permissible purpose is to show a “common
scheme or plan” in which “‘an individual devises a plan and uses it repeatedly to
perpetrate separate but very similar crimes.’” State v. Gresham, 173 Wn.2d 405,
421-22, 269 P.3d 207 (2012) (quoting State v. Lough, 125 Wn.2d 847, 854-55, 889
P.2d 487 (1995)).
Here, Villa was charged with child molestation in the first and third degree,
both of which required the State to prove that he had “sexual contact” with a child.
See RCW 9A.44.083; RCW 9A.44.089. The jury was instructed that “sexual
contact” means “any touching of the sexual or other intimate parts of a person done
for the purpose of gratifying sexual desires of either party.” Relevant here, the
State sought to “use the evidence that will be admitted throughout the trial as it
relates to each count against each victim . . . as evidence of 404(b) under common
scheme or plan” and “to show motive.” The State’s justification for using the
evidence in this manner was to show that Villa touched M.J.C. and J.P. “for sexual
gratification purposes.” The trial court allowed the State to use this evidence to
show “common scheme or plan and . . . motive and intent for sexual gratifications.”
Villa does not challenge this ruling on appeal, nor does he challenge the court’s
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related denial of his motion to sever the offense relating to J.P. from those relating
to M.J.C. and conduct separate trials.
Instead, Villa challenges the trial court’s limiting instruction. If evidence of
a defendant’s other crimes, wrongs, or acts is admissible under ER 404(b) for a
proper purpose, “the defendant is entitled to a limiting instruction upon request.”
Gresham, 173 Wn.2d at 423. “An adequate ER 404(b) limiting instruction must, at
a minimum, inform the jury of the purpose for which the evidence is admitted and
that the evidence may not be used for the purpose of concluding that the defendant
has a particular character and has acted in conformity with that character.” Id. at
423-24. “This forbidden inference is rooted in the fundamental American criminal
law belief in innocence until proven guilty, a concept that confines the fact-finder
to the merits of the current case in judging a person’s guilt or innocence.” State v.
Wade, 98 Wn. App. 328, 336, 989 P.2d 576 (1999).
The limiting instruction here is egregiously defective. The instruction refers
to “testimony from M.J.C. and J.P.[] concerning incidents alleged to have occurred
between 2008 and 2015,” which encompasses all four incidents of alleged
molestation against both victims. It then instructs the jury it may consider this
evidence both in “assessing whether the State has proven the elements of the
crimes charged” and in “assessing the credibility of the witnesses.” Instructing the
jury to use evidence of the defendant’s other crimes, wrongs, or acts to assess
whether the State has satisfied the multiple “elements” of the multiple “crimes”
charged is, by definition, instructing the jury to determine whether a defendant has
a particular character and has acted in conformity with that character. ER 404(b)
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prohibits such an instruction. And under established precedent, ER 404(b)
evidence is inadmissible for credibility purposes except where the complaining
victim recants or gives conflicting statements about the defendant’s conduct. See
State v. Gunderson, 181 Wn.2d 916, 923-25, 337 P.3d 1090 (2014). That did not
occur here. Moreover, the instruction does more than simply permit the use of ER
404(b) evidence for propensity purposes; it states that the jury’s “evaluation of this
evidence during your deliberations must be consistent with this instruction.”
(Emphasis added). In other words, instruction 4 impermissibly mandated that the
jury consider the ER 404(b) evidence for two improper purposes. The trial court
thus erred in giving instruction 4. 3
The State’s brief fails to address Villa’s contention that instruction 4 violates
ER 404(b). 4 Instead, the State argues we should decline to consider Villa’s
challenge to instruction 4 because he either waived this argument or invited the
claimed error by failing to specifically object to this instruction below and
consenting to its inclusion in the court’s final jury instructions. We are not
persuaded by either argument.
3 Unfettered use of evidence in a single trial involving multiple counts and victims also violates
fundamental principles of joinder and severance of offenses. “Severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition.” State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). This is especially true where, as here, “the alleged crimes are sexual in nature” because “there is a recognized danger of prejudice to the defendant even if the jury is properly instructed to consider the crimes separately.” Id. at 884. 4 Despite appearing to tacitly concede this issue in its brief, the State asserted for the first time at
oral argument that instruction 4 did not erroneously instruct the jury in violation of ER 404(b). Wash. Ct. of Appeals oral argument, State v. Villa, No. 85627-8-I (Jan. 10, 2025), at 17 min., 06 sec. to 19 min., 02 sec. (on file with court). We generally decline to consider such arguments. See RAP 12.1(a) (court “will decide a case only on the basis of issues set forth by the parties in their briefs”); State v. Ramos, 24 Wn. App. 2d 204, 213 n.7, 520 P.3d 65 (2022) (declining to address argument raised by the State for the first time at oral argument).
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Generally, a party who fails to object to a jury instruction before the trial
court waives a claim of error on appeal. State v. Schaler, 169 Wn.2d 274, 282,
236 P.3d 858 (2010); RAP 2.5(a). However, our Supreme Court in Gresham
created an exception to this rule in the context of ER 404(b) limiting instructions by
holding, “At least in the context of ER 404(b) limiting instructions, once a criminal
defendant requests a limiting instruction, the trial court has a duty to correctly
instruct the jury, notwithstanding defense counsel’s failure to propose a correct
instruction.” 173 Wn.2d at 424. Applying this principle to the instant case, once
Villa requested an ER 404(b) limiting instruction, the trial court had an independent
duty to correctly instruct the jury as to the proper use of this ER 404(b) evidence,
notwithstanding defense counsel’s failure to propose a correct instruction.
Therefore, Villa has not waived his challenge to instruction 4.
Gresham also disposes of the State’s invited error argument. The invited
error doctrine “applies when a party takes affirmative and voluntary action that
induces the trial court to take the action that the party later challenges on appeal.”
In re Pers. Restraint of Salinas, 189 Wn.2d 747, 757, 408 P.3d 344 (2018) (quoting
15A KARL B. TEGLAND & DOUGLAS J. ENDE, WASHINGTON PRACTICE: W ASHINGTON
HANDBOOK ON CIVIL PROCEDURE § 88.4, at 758 (2015 ed.)). Although Gresham did
not address the invited error doctrine, we reject the State’s invitation to apply it
here for the same reason the Gresham court declined to apply the waiver doctrine
in such a scenario, namely that placing the duty to correctly instruct the jury on the
trial court, rather than defense counsel, is “more efficient and better prevents the
possibility of unfair prejudice than does the alternative of holding that defense
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counsel’s failure to craft a proper instruction is waiver of the request for a limiting
instruction, thereby relegating the defendant to a personal restraint petition alleging
ineffective assistance of counsel.” 173 Wn.2d at 424-25. And because the invited
error cases relied upon by the State do not involve ER 404(b) limiting instructions,
they do not control over Gresham. 5
Even if the invited error doctrine could apply here, we would not apply it
under these circumstances because defense counsel did not propose the
erroneous limiting instruction or affirmatively induce the trial court to give it to the
jury; he merely e-mailed the trial court that its final instructions “Look[] to comply
with what the court stated.” Moreover, the record clearly indicates the
prosecutor—not defense counsel—drafted and proposed the erroneous limiting
instruction. And it was the prosecutor who initially suggested a limiting instruction
in lieu of severing the offenses “to make it very clear to the jurors what the evidence
is to be considered for and the reasons for that.” The trial court agreed that such
an instruction would be “appropriate” and recognized that a “limiting instruction can
really assist in keeping jurors focused on what their obligations are and how they
are to consider the evidence being presented.” Given the prosecutor’s shared
responsibility for this erroneous limiting instruction, the State’s invited error
argument easily fails.
5 See Salinas, 189 Wn.2d at 754 (public trial right); State v. Elmore, 139 Wn.2d 250, 280, 985 P.2d
289 (1999) (misstatement of and judicial comment on evidence); State v. Studd, 137 Wn.2d 533, 538, 973 P.2d 1049 (1999) (self-defense instruction); In re Dep. of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995) (polygraph testimony).
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The State also argues that “[e]ven if [the] jury had been instructed not to
consider ER 404(b) evidence for purposes of establishing [Villa’s] propensity to
molest and action in conformity with that propensity,” the error was harmless
because the “evidence of his guilt was overwhelming.” “Erroneous admission of
evidence in violation of ER 404(b) is analyzed under the nonconstitutional
harmless error standard—that is, we ask whether there is a reasonable probability
that, without the error, ‘the outcome of trial would have been materially affected.’”
State v. Gower, 179 Wn.2d 851, 854-55, 321 P.3d 1178 (2014) (internal quotation
marks omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
This same standard applies when admissible evidence is erroneously “considered
beyond its properly limited purpose.” In re Dep. of A.C., 1 Wn.3d 186, 196, 525
P.3d 177 (2023).
We are not convinced this error was harmless. The erroneous instruction 4
severely prejudiced Villa because this was a trial involving sex offenses, where the
“potential prejudice from admitting evidence of prior bad acts is ‘at its highest.’”
See State v. Gogo, 29 Wn. App. 2d 107, 117, 540 P.3d 150 (2023) (quoting State
v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982)). In a case such as this
where “credibility [is] the main issue,” highly prejudicial evidence relating to other
alleged incidents of molestation perpetrated by the defendant “impermissibly
bolster[s] the alleged victim’s credibility.” See Gower, 179 Wn.2d at 858 (citing
Gresham, 173 Wn.2d at 433). That is especially so here, where the erroneous
instruction directed the jury to use the ER 404(b) evidence “in assessing the
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credibility of the witnesses.” The State relied on this instruction in closing when it
told the jury, “You heard in Instruction No. 4 that the testimony of [M.J.C.] and [J.P.]
can be considered to assess their credibility,” and that the “reasonableness of
[M.J.C.’s and J.P.’s] statements . . . weighs heavily in favor of finding [them]
credible beyond a reasonable doubt.”
Aside from the victims’ testimony, the State largely relied on Villa’s
apologies and requests for forgiveness to prove his guilt. But Villa has presented
a plausible, innocent explanation for his apparent admissions of wrongdoing,
namely that he was apologizing for how M.J.C. and J.P. felt he had treated them—
not for acts he had actually committed—because forgiveness “is a really big part
of our Christian walk of our faith.” Additionally, Villa never admitted to touching
M.J.C.’s penis. And Villa presented an alibi witness, Leida, who testified that he
could not have sexually touched M.J.C. in the tent during the 2008 VBS because
Villa slept in her cabin to have access to electricity to charge his asthma treatment
equipment.
Given the gravity of the prejudice resulting from this error and the lack of
overwhelming evidence supporting a case that hinged on witness credibility, we
conclude that, within reasonable probabilities, the outcome of Villa’s trial would
have been materially affected had the trial court not given the erroneous
instruction. See Gunderson, 181 Wn.2d at 926 (reversing conviction because it
was “reasonably probable that absent the highly prejudicial evidence of
Gunderson’s past violence the jury would have reached a different verdict,” even
though the remaining evidence “may be sufficient to find Gunderson guilty”). And
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although the evidence of guilt is more persuasive as to the count involving J.P. as
compared to the counts involving M.J.C., we decline to affirm Villa’s conviction on
the former and reverse his convictions only on the latter. Under controlling
precedent, a partial reversal is only warranted when the error does not affect all
counts. 6 Here, in contrast, the erroneous instruction referred to evidence relating
to both J.P. and M.J.C. and allowed the jury to use the testimony of one victim to
convict on counts involving the other victim. The proper remedy, therefore, is to
reverse all of Villa’s convictions and remand for a new trial on all counts.
Notwithstanding the above analysis, the State contends the error here is
harmless because it resembles the harmless error in Gresham. In that case, on
appeal from the defendant’s convictions for first degree child molestation, the
Supreme Court held that the trial court’s failure to give a limiting instruction
regarding ER 404(b) evidence relating to the defendant’s molestation of other
children was harmless given the other “overwhelming evidence” of guilt. 173
Wn.2d at 425. This overwhelming evidence included the victim’s detailed
testimony, the defendant’s flight from prosecution, the jury’s opportunity to assess
the defendant’s credibility, and “perhaps most damning, the recorded phone
conversation in which [the defendant] all but admits his molestation of [the victim].”
Id.
6 See State v. Goodman, 42 Wn. App. 331, 341, 711 P.2d 1057 (1985) (erroneous denial of motion
to suppress evidence relating to items found inside suitcase warranted reversal of conviction for possession of stolen property but not conviction for burglary, which was supported by other “overwhelming” evidence unrelated to the contents of the suitcase); State v. Pickens, 27 Wn. App. 97, 101, 615 P.2d 537 (1980) (confrontation clause violation warranted reversal on count supported by that witness’s testimony but not on other counts supported by “considerable” evidence that did not depend on the witness’s testimony).
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Gresham is readily distinguishable because the trial court here did not just
fail to give a limiting instruction; it gave an instruction that exacerbated the
prejudice of the ER 404(b) evidence. Additionally, the Gresham defendant’s “all
but admi[ssion]” to molesting the victim was more incriminating than Villa’s
statements. In Gresham, the victim asked the defendant specific questions such
as, “Why did you touch me in my vagina” and “[W]hy did you squeeze me and
touch me in places that I don’t want to be touched?” Id. at 416-17. In response,
the defendant made statements such as, “I had too many drinks and I really didn’t
realize what was happening,” “I just felt . . . very strongly for you [and] I like you
very much, love you and uh I guess I thought [I] was doing the right thing instead
of the wrong thing,” “I wish it didn’t happen,” and “I made a mistake.” Id. In
contrast, Villa frequently expressed confusion and surprise at M.J.C. and J.P.’s
allegations, claiming that he did not remember sexually touching them and that
any such touching would have been done accidentally or subconsciously. Also
unlike the Gresham defendant, Villa presented an explanation as to why he would
apologize and seek forgiveness for acts he did not commit. Because the record
here is far less compelling than that in Gresham and does not establish harmless
error, the State’s reliance on Gresham is misplaced.
III
In sum, while the trial court did not err in denying Villa’s motion to suppress
the statements he made to Priebe-Olson, it erred in giving a limiting instruction that
effectively required the jury to consider propensity evidence in determining whether
the State had proven the elements of the charged crimes and in assessing the
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witnesses’ credibility—both of which were impermissible here. Because this error
was not harmless, we reverse and remand for a new trial on all counts without
reaching Villa’s remaining assignments of error.
WE CONCUR:
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