FILED
FEBRUARY 2,2016
In the Office of the Clerk of Cou rt
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 32723-0-III Respondent, ) ) v. ) ) DENNIS NEAL GASTON, ) UNPUBLISHED OPINION ) Appellant. )
FEARING, J. Dennis Gaston appeals his conviction for child molestation in the
second degree on numerous evidentiary grounds. He also contends the State committed
misconduct during its closing statement. We hold that the trial court committed harmful
evidentiary error by admitting a statement uttered by Gaston during a police interview to
the effect that he suffered from "urges." We reverse his conviction and remand for a new
triaL No. 32723-0-111 State v. Gaston
FACTS
On an unidentified day in the spring of2013, J.W., a minor, rode his bicycle from
his mother's house to his grandmother's residence in picturesque Goldendale. While
journeying across town, J.W. stopped when he saw an adult family friend, Dennis
Gaston, in the latter's driveway. J.W. parked his bicycle in Gaston's driveway and
walked to the carport where Gaston stood. The two conversed about cars, whether 1.W.
had a girlfriend, and whether J.W. engaged in sex with a girl. According to J.W., Gaston
reached down 1. W: s loose blue jeans, underneath his underwear, and rubbed his penis
for one to two minutes. Gaston asked J.W. if J.W. was getting hard. J.W. did not reply.
On August 29,2013, Goldendale Police Officers Dwayne Matulovich and Leo
Lucatero questioned Dennis Gaston at the Goldendale police station. The officers
recorded and transcribed the interview. During the station interview, Gaston first claimed
he only touched J.W. on the shoulder. Officer Lucatero prefaced the questioning with the
kindly remarks:
Now, Dennis, the reason-the reason we're seriously looking at this is because we-we've been starting to see a pattern. And urn, I'm gonna be straight up with you about that. I had a situation here in 2010 with (Norman Escari), and it was almost identical to this, almost identical. And uh, we had a person come in here, urn, awhile back, I was advised that uh, was complaining about urn, uh, something to do with (BJ. Fox), that you were trying to get with him or something like that, and uh, so we're-we're starting to see a pattern here, and we're-we're concerned more than anything. You know, if- ifthey're-if-ifyou've got a problem with something, Dennis .... You know, a lot of people have problems, you know, that are serious problems sometimes, sometimes not, but there
No. 32723-0-II1 State v. Gaston
there-there are people out there that, you know, we all need help in certain areas in our life.
You know, we all sometimes come up with these issues that we've got to deal with. If you've got anything like that, Dennis, you know, urn, let's-let's try to nip it in the bud, let's try-urn, there-there is things that-that we can-we can do as-as law enforcement and through the legal system to help you with those problems if-if you've got those problems, but the-the reason, you know, this isn't just a knock and talk. The reason I-you know, last time I was able to just go talk to you is we're looking at this a little bit more on the serious side, because we're starting to see a pattern here. And we're having a hard time believing that this boy just came up and made this whole thing up.
Ex. 1 at 5-6.
Officer Leo Lucatero spoke to Dennis Gaston in the third person:
You know, but we're giving you an opportunity right now to, you know, tell us straight up, you know, if you-if something happened, you know, urn, let's talk about it, let's deal with it. If Dennis has got any issues that he needs to deal with, let's-let's get you the assistance you need, if that's the case, get you the help you need. You know, we don't-we don't hate you. We're not trying to be mean or-or give you a hard time, but if there's-there's anything going on, Dennis, where something did happen, let's-let's lay our cards out on the table, let's-let's be straight up with it, and if we need to get Dennis some help, let-let-let's do that. Let's do that to, you know, prevent something like this from happening again, you know, if that' s-if that's the case. But urn, you know, I-I dealt with the , (Norman) case and got all his information and talked to you, and then when I come in today, I hear about this and I hear the details, and uh, you know, Officer Matulovich read it too, you know, and uh, we uh, compared notes and-and they're-it's just-for me it's just too many similarities to just shrug it off and say they're coincidence. Urn, you know, we need we're-we need to get down to the bottom of this and figure out what happened. Now we're giving you the opportunity right now, Dennis, to to be straight up with us if something did happen. Did something happen?
Ex. at 6.
No. 32723-0-111 State v. Gaston
Dennis Gaston then conceded that he touched J.W. on the leg and later confessed
to touching the boy on the thigh. He denied putting his hand in J.W.'s pants. Officer
Lucatero declined Gaston's offer to touch the officer's leg in order to illustrate how
Gaston touched J. W.
During the police station interview, Officer Leo Lucatero next told Dennis Gaston
that an adult man in the community reported to police that Gaston solicited sex from him.
Ex. at 8-9. Lucatero added:
... But we're giving you an opportunity right now, Dennis, that, you know, if there's a problem, if you're dealing with something, you're having a hard time with something-maybe you have urges or something like that, urn, let's help that. Let's help you, let's-let's help Dennis, let's get this taken care of, let's get it, you know, if you need, you know, treatment, anything like that. You know, a lot of people don't like to hear that, but, you know, it's not gonna get better, it's gonna get worse. You know, 'cause one situation was adult; now it's a kid, you know what I'm saying.
[W]e're not here to say you're a bad person, Dennis, we're not. You know, I've known you for a long time. You're a good guy, you've always been real helpful. It's just that Dennis has some problems he needs to take care of. Let's do it now while it's in early stages, because you might even have it on your mind-you know, a lot of people-I've seen it over and over where people think, oh, this is a scary situation, you know, I'mjust gonna say 1 didn't do it, and 1 just won't do it anymore. But then those urges take you over.
Ex. 1 at 10-11. During legal proceedings, Dennis Gaston contended that the two officers
unfairly and repeatedly equated soliciting homosexual sex with pedophilia.
After Officer Leo Lucatero repeatedly told Dennis Gaston that the legal system
could and would help him, Gaston discussed dealing with "urges." The admissibility at
trial of Gaston's admission of urges is the principal issue on appeal. Gaston informed the
two Goldendale officers:
I've had urges. I'm not-I'm not gonna lie to you, either one of you, 'cause 1 like both of you and respect both of you.
I've had urges. 1 haven't acted on them like 1 wanted to, you know, 'cause 1 know it's wrong.
· .. but 1 thought there is no help, nobody-I don't think anybody really cares.
You know, and 1 feel like if 1 did do something bad, I'd wind up going to jail, I'd wind up, you know.
· .. [I]t would ruin my marriage and everything else-that why 1 haven't. · .. That's the only thing that probably stopped me, is ...
· .. the fact that 1 have a good wife.
But, you know, 1 just feel like there's, you know, other than my world 1 work my ass off because-to keep from the urges.
Ex. 1 at 12-13.
Late in the interview, Dennis Gaston mentioned being sexually abused as a boy by
an older male cousin. He then added:
Well, and I've wanted [help]. I've actually went to counselors before and-they don't help, you know.
Ex. 1 at 16. Officer Leo Lucatero then asked Gaston to disclose his interaction
with J.W. during the spring day. Gaston would again only concede touching J.W.
on the thigh. Lucatero stated he did not believe Gaston, because Gaston had
already conceded "urges." Ex. 1 at 17. Lucatero claimed to look into Gaston's
eyes and see pain in Gaston's soul. Gaston insisted that all he could remember is
touching J.W. on the thigh.
PROCEDURE
The State of Washington charged Dennis Gaston with child molestation in the
second degree. Dennis Gaston moved in limine, pursuant to ER 402 and 403, to exclude
any mention regarding allegations of same sex sexual contact between him and adults.
The trial court granted the motion.
The trial court conducted a CrR 3.5 hearing to determine the admissibility of
Dennis Gaston's statements to the police during the August 29 interview. The State
wished to read to the trial jury Gaston's comments about his urges. Dennis Gaston
objected to the admission of these statements by referencing the order in limine
previously entered by the trial court. Gaston added that his comments about urges
constituted ER 404(b) evidence and was inadmissible for this additional reason. He
contended that his comment did not amount to a confession of the crime, since he told the
police officers that he did not act on his urges. In response to Gaston's ER 404(b)
argument, the State did not contend that the testimony was admissible under one of the
enumerated purposes in the evidence rule. This lack of a response is a significant factor
in this appeal.
No. 32723-0-III State v. Gaston
After hearing argument, the judge conducted an ER 403 balancing test on the
record, saying:
It's a close call, and it's a potentially serious one. It's very probative, I think, of-of a state of mind that from the state's point of view might lead him to want to-solicit, or whatever the proper word is, some kind of physical contact with the child, which is what allegedly occurred in this case-not even for very many minutes, I don't think, but it was contact that the state alleges was illegal, for the reasons that we all know. It's also-very prejudicial. I don't know how a jury would not view this in the light favorable to the state's theory. Except to the extent that in his statement he does say, "That's why I haven't done it." He does kind of-suggest that although he's had urges he's never acted on them. That might work in the defendant's favor. But over all it seems pretty prejudicial to the defendant. Maybe even the knock-down blow; I don't know for sure. But having made that analysis, I think that the probative value outweighs the prejudicial nature. He was Mirandized-I guess we'll find out. This was in the form of a confession, or a long, rambling colloquy with officers. He volunteered this information. He just spoke plainly about it. And I agree with [the State] that it's in the context of the charge that was being alleged with the young man. So I'm going to allow those comments in.
Verbatim Report Proceedings (VRP) at 22-23 (emphasis added). In its ruling, the
trial court made no mention ofER 404.
Dennis Gaston also moved in limine, based on ER 801 and 802, to preclude Julie
Woolery, J.W.'s mother, from testifying because Gaston expected her to testify about
statements made by J.W. regarding the alleged crime. The trial court ruled that the
mother could testify to some of the events occurring after the alleged crime, but Woolery
could not testify to what J. W. told her.
During trial, Julie Woolery, J.W.'s mother, testified to events after the encounter
between J.W. and Dennis Gaston. Dennis Gaston repeatedly objected during the
testimony. Woolery testified she received a startling phone call from J.W.'s stepmother.
The trial court sustained an objection to Woolery testifying to the contents of the call.
Woolery, with her friend Sunday Sutton, retrieved J.W. Sutton is a mental health
professional. The trial court, based on an order in limine, did not allow Woolery to
testify what J. W. told her after she retrieved him, but the court allowed her to testify that
J.W. told her something and this unidentified something led to her retrieving him.
J.W. and Julie Woolery called the police to report the incident. The police later
interviewed J.W. at his home. The incident upset J.W. Woolery took J.W. to counseling.
At trial, J.W. testified inconsistently about the positioning of Dennis Gaston and
him during the touching. J. W. first declared that Gaston gave him a "side hug" and later
averred that the two stood facing each other. J.W. declared that he did not wish Gaston to
feel uncomfortable during the incident. The State elicited testimony from J.W. about
why he did not want Gaston to feel uncomfortable:
A Well, I looked down to see where he was putting his hand, and then 1 looked back up at him to acknowledge what he was doing, you know, 'cause 1 didn't-at that time 1 didn't really want him to feel uncomfortable -what he was doing. And 1 didn't say anything because 1 didn't- Q What do you mean, you didn't want him to feel uncomfortable. A Well, he was enjoying what he was doing, but [Defense Counsel]: Your Honor, I'm going to object as far as it being speculative.
THE COURT: If you could rephrase the question.
[Prosecutor]: Okay. Q What do you mean that you didn't want him to feel uncomfortable in-when you were looking at him. We can 't-You don't really know what he was feeling, so- [Defense Counsel]: Your honor, I'm going object as far as the form of the question. It's now coaching. THE COURT: Overruled. Q I just want you to say why you were not wanting him to feel uncomfortable. A He was enjoying what he was doing and I don't like seeing people, you know, uncomfortable or anything, and-not only that but I didn't say anything because I wasn't sure what to say.
VRP at 88-89.
During trial, Officer Dwayne Matulovich read to the jury portions of the transcript
of the recorded police station interview of Dennis Gaston. Goldendale Officer Dwayne
Matulovich read the following excerpt about "urges" to the jury:
[Gaston]: I've had urges. I'm not-I'm not gonna lie to you, either one of you, 'cause I like both of you and respect both of you.
I've had urges. I haven't acted on them like I wanted to, you know, 'cause I know it's wrong.
· .. but I thought there is no help, nobody-I don't think anybody really cares.
You know, and I feel like if I did do something bad, I'd wind up going to jail, I'd wind up, you know.
· .. [I]t would ruin my marriage and everything else-.that's why I haven't.
That's the only thing that probably stopped me, is ...
· .. the fact that I have a good wife.
But, you know, I just feel like there's, you know, other than my world I work my ass off because-to keep from the urges.
During closing arguments, the prosecution uttered the following comments that
Dennis Gaston contends constitute prosecutorial misconduct:
Sexual contact is described in Jury Instruction 9 as any touching any touching--ofthe sexual or other intimate parts of a person done for the purpose of gratifYing sexual desires of either party. And if you will recall, lW. testified that as this event was happening Mr. Gaston was saying, "Are you getting hard," "Are you enjoying this." So it doesn't necessarily have to be that Mr. Gaston was enjoying this, although there was some testimony to the effect that he was. If it's done for gratifYing the sexual desires of either party. That's something to keep in mind .
. . . There are some tremendous consistencies in what [l.W.] said. And that is what I want to focus on, here.
Hands down pants. Under his underwear. Rubbed his penis. Asked ifhe was enjoying it. Asked ifhe was getting hard .
. . . A once in a lifetime event. What was the once in a lifetime event. It was that a man put his hands down lW.'s pants, rubbed his penis up and down, and asked him ifhe was enjoying it and he was getting hard.
VRP at 172-73, 179, 191 (emphasis added).
Also during closing, the State remarked about lW.'s candor and a difficulty in
adults' comprehending incidents children encountered:
He's thirteen years old when this is going on. Now he's a very self possessed thirteen years old, he's very direct. One of the things you may have noticed is, you know, he makes eye contact and he answers very
directly. Sometimes he's not asked-answering the question that the questioner seems to think they're asking, but he's answering the questions. And he's very candid about it. In/act his candor is-is a little remarkable in that he disclosed to one of Mr. Gaston's attorneys that there were times when he did lie, when-when he was afraid he was going to get in trouble.
Ladies and gentleman, 1 know you'll do the right thing. You've been very attentive through all of this. And it's difficult facts. These are difficult things to-to think that our children go through . ...
· .. But he did not back down on what he was saying, and he continued to answer candidly.
VRP at 175-76,197 (emphasis added).
The jury found Dennis Gaston guilty of child molestation in the second degree.
The judge sentenced him to eighteen months in prison and thirty-six months' community
custody. One of Gaston's community custody conditions ordered him not to "purchase,
possess or view any pornographic material." Clerk's Papers (CP) at 98.
LA W AND ANALYSIS
Issue 1: Whether the trial court erred when admitting the "urges" testimony
against an ER 402 relevancy objection?
Answer 1: No.
Dennis Gaston contends that the trial court erred by admitting his "urges"
comments during the police interrogation because the evidence was irrelevant under ER
401 and 402, was unduly prejudicial under ER 403, and was prohibited as character or
past acts testimony under ER 404. We hold that the trial court did not abuse its discretion
when ruling the evidence to be relevant and not unduly prejudiciaL We hold the trial
court committed error under ER 404 by admitting the testimony. We first address the
relevancy objection.
Dennis Gaston argues that the State used his confession to "urges" as a statement
conceding to pedophilic cravings, when he was only admitting to homosexual
inclinations. Thus, he contends his comments about yearning lacked relevance to the
charge of child molestation. The State argues that Gaston's acknowledgment during the
police interview is relevant because the urges more likely related to adolescent males,
rather than encounters with adult males. Both parties may labor under the false
alternative that Gaston's acknowledgment of impulses related to either adults or
adolescents and did not pertain to both.
Under ER 401:
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Evidence which is not relevant is not admissible. ER 402. Relevance presents a very low
bar. Mut. ofEnumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702, 729, 315 P.3d
1143 (2013), review denied, 180 Wn.2d 1011, 325 P.3d 914 (2014).
To be relevant, evidence must meet two requirements: (1) the evidence must have
a tendency to prove or disprove a fact (probative value), and (2) that fact must be of
consequence in the context of the other facts and the applicable substantive law
(materiality). Davidson v. Metro. Seattle, 43 Wn. App. 569,573, 719 P.2d 569 (1986).
The relevancy of evidence will depend on the circumstances of each case and the
relationship of the facts to the ultimate issue. Chase v. Beard, 55 Wn.2d 58, 61, 346 P.2d
315 (1959), overruled on other grounds, 100 Wn.2d 729, 675 P.2d 1207 (1984).
Relevant evidence encompasses facts that present both direct and circumstantial evidence
of any element ofa claim or defense. State v. Rice, 48 Wn. App. 7, 12, 737 P.2d 726
(1987). Facts tending to establish a party's theory ofthe case will generally be found to
be relevant. State v. Mak, 105 Wn.2d 692, 703, 718 P.2d 407 (1986).
This court reviews relevance evidentiary rulings for manifest abuse of discretion.
State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994). Discretion is abused only when
no reasonable person would have decided the issue as the trial court did. State v. Rice,
110 Wn.2d 577, 600, 757 P.2d 889 (1988).
Given the background of Dennis Gaston's acknowledgment, the subject of his
urges could be interpreted as adolescent males, adult males, or both. A reasonable person
could infer that Gaston's confession referred to pedophilic urges, and this inference
would tend to make it more likely that he would have touched a child for sexual
gratification.
Issue 2: Whether the trial court erred when admitting the "urges" testimony
against an ER 403 prejudice objection?
13 No. 32723-0-II1 State v. Gaston
Dennis Gaston also argues that, even ifhis confession to urges is relevant, reading
his admission to the jury violated ER 403. The State contends that Gaston's yearnings
acknowledgment is not substantially more prejudicial than probative. We agree with the
State or at least agree that the trial court could reasonably accept the State's contention.
ER 403 declares:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
When administering ER 403, we recognize that nearly all evidence worth offering
in a contested case will prejudice one side or the other. Carson v. Fine, 123 Wn.2d 206,
224,867 P.2d 610 (1994). Evidence is not rendered inadmissible under ER 403 just
because it may be prejudicial. Carson v. Fine, 123 Wn.2d at 224. Under ER 403, the
court is not concerned with this ordinary prejudice. Carson v. Fine, 123 Wn.2d at 224.
The trial court may reduce prejudice in the jury by proper instructions concerning its duty
to weigh credibility and the standard admonition not to permit sympathy or prejudice to
affect the verdict are the tools to direct the jury to a proper consideration of the evidence.
Carson v. Fine, 123 Wn.2d at 224-25.
Courts variously define "unfair prejudice" for purposes ofER 403. Such prejudice
is caused by evidence of scant or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect. United States v. Roark, 753 F .2d 991, 994 (11 th Cir.
1985). In determining prejudice, the linchpin word is "unfair." State v. Rice, 48 Wn.
App. at 13 (internal quotation marks omitted). Washington cases agree that unfair
prejudice is caused by evidence likely to arouse an emotional response rather than a
rational decision among the jurors. Carson v. Fine, 123 Wn.2d at 223 (1994); Lockwood
v. AC & S, Inc., 109 Wn.2d 235,257, 744 P.2d 605 (1987); State v. Cameron, 100 Wn.2d
520,529,674 P.2d 650 (1983).
Under ER 403, the burden of showing prejudice is on the party seeking to exclude
the evidence. Carson v. Fine, 123 Wn.2d at 225. There is a presumption favoring
admissibility under ER 403. Carson-v. Fine, 123 Wn.2d at 225. Because of the trial
court's considerable discretion in administering ER 403, reversible error is found only in
the exceptional circumstance of a manifest abuse of discretion. State v. Gould, 58 Wn.
App. 175, 180,791 P.2d 569 (1990).
The Washington Supreme Court has declared that, unlike a ruling to an objection
under ER 404(b), the trial court need not weigh its decision on the record in the instance
of an ER 403 objection. Carson v. Fine, 123 Wn.2d at 223. We question the wisdom of
this declaration, because the reviewing court lacks the ability to determine whether the
trial court abused its discretion when performing an ER 403 analysis unless we know
from the trial court's oral comments that it weighed the appropriate factors. We need not
address the prudence of the declaration in this appeal, however, since our trial court, on
the record, balanced the probative value versus the prejudicial effect of the admission of
the urges testimony. As reasoned by the trial court, a jury could reasonably conclude
that, based on the disclosure, Dennis Gaston held a sexual attraction to underage boys. A
jury might reasonably conclude that a defendant will not molest an adolescent boy unless
the defendant holds such inclinations. Although Gaston's concession was highly
prejudicial, the acknowledgment was highly probative to the charge of child molestation
in the second degree. We do not second guess the trial court, when the court conducted a
balancing test on the record that comports with ER 403.
Issue 3: Whether Dennis Gaston preserved/or appeal an objection under ER
404(b) to his "urges" acknowledgment?
Answer 3: Yes.
Dennis Gaston next contends that the trial court erred by failing to conduct an ER
404(b) analysis on the record about the admissibility of the "urges" testimony. ER 404
concerns the admissibility of a defendant's character and prior acts. We must address a
procedural defense raised by the State, before reaching the merits of Gaston's argument.
The State contends that Gaston never raised an ER 404(b) objection during the motion in
limine hearing or at trial and only objected on the grounds of relevance and prejudice.
We disagree.
RAP 2.5(a) states "[t]he appellate court may refuse to review any claim of error
which was not raised in the trial court." Nevertheless, the Washington Supreme Court
has held that an objection based on prejudice suffices to preserve for appeal a challenge
based on ER 404(b), because the challenge to the evidence suggests that the defendant is
prejudiced by the admission of evidence of prior bad acts. State v. Mason, 160 Wn.2d
910,933, 162 P.3d 396 (2007).
During the erR 3.5 hearing, Dennis Gaston objected to the admission as evidence
of his "urges" acknowledgment in part on the ground of prejudice. He went one step
further and additionally mentioned ER 404(b). Dennis Gaston did not to object to the
urges testimony during trial because of his earlier motion in limine. Pretrial motions, like
motions in limine, create standing objections to the introduction of specific evidence. See
Millican v. N.A. Degerstrom, Inc., 177 Wn. App. 881, 889,313 PJd 1215 (2013), review t
denied, 179 Wn.2d 1026,320 PJd 718 (2014); State v. Powell, 126 Wn.2d 244, 255,893
P.2d 615 (1995); State v. Ramirez, 46 Wn. App. 223, 229, 730 P.2d 98 (1986).
Issue 4: Whether the trial court erred byfailing to conduct an ER 404(b) analysis
for the "urges" testimony?
Answer 4: Yes, but we hold that the testimony ofurges was inadmissible
regardless ofwhether the trial court performed an ER 404(b) analysis since the State
does not contend an ER 404(b) exception applies.
The trial court did not address Dennis Gaston's challenge to Gaston's concession
to urges under ER 404(b). The trial court balanced the prejudicial effect to the probative
impact of the evidence under ER 403, but did not on the record analyze all of the factors
required under ER 404. On appeal, Gaston argues that this omission was prejudicial error
and thus he deserves a new trial. The State responds that the "urges" confession does not
refer to an act, so ER 404(b) does not apply in this context.
Dennis Gaston's challenge anticipated that the State would argue that an ER
404(b) exception applies, thereby requiring an analysis on the record. Nevertheless, the
State forwards no such contention. Therefore, no ER 404(b) analysis is needed.
We disagree with the State's contention that "urges" is not an "act" blanketed by
ER 404(b). ER 404 reads, in part:
(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character ofAccused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(b) Other Crimes, Wrongs, or Acts. 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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
ER 404(b) includes not only prior bad acts and misbehavior but any evidence
offered to show the character of a person to prove the person acted in conformity with
thatcharacteratthetimeofacrime. Statev. Foxhaven, 161 Wn.2d 168,175, 163P.3d
786 (2007); State v. Everybodytalksabout, 145 Wn.2d 456,466,39 P.3d 294 (2002).
Thus, the provisions ofER 404(a) overlap with the dictates ofER 404(b). In fact, ER
404(b) recognizes that evidence of prior acts is typically used by the State to show the
defendant suffers from a particular character defect. The very purpose of ER 404 is to
exclude character evidence. In re Meistrell, 47 Wn. App. 100, 109, 733 P.2d 1004
(1987). In tum, ER 404(a) bars evidence ofa person's character or a trait of character for
the purpose of proving action in conformity therewith on a particular occasion. In no
case, regardless of its relevance or probativeness, may the evidence be admitted to prove
the character of the accused in order to show that he acted in conformity therewith. State
v. Gresham, 173 Wn.2d 405,420-21,269 P.3d 207 (2012).
Evidence of one's character or prior acts may be admissible for some purposes
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. ER 404(b). If the State seeks to introduce evidence for
such an alternate purpose, the trial court must perform an analysis under ER 404(b).
Before the trial court admits evidence of prior misconduct under ER 404(b), it must (1)
find by a preponderance of the evidence that the prior misconduct occurred, (2) identify
the purpose for admitting the evidence, (3) determine the relevance of the evidence to
prove an element of the crime, and (4) weigh the probative value of the evidence against
its prejudicial effect. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009); State v.
DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). The trial court must conduct the
above analysis on the record. State v. Asaeli, 150 Wn. App. 543, 576 n.34, 208 P.3d
1136 (2009).
Since one of the elements of the ER 404(b) balancing test is the court's
identification of the purpose for admitting the evidence, the State must isolate for the trial
court the ER 404(b) purpose or exception it contends applies to permit admissibility.
Under an ER 404 analysis, a character trait may be admitted only if one of the exceptions
applies. State v. Gresham, 173 Wn.2d at 421 (2012). The State did not address ER
404(b) below and does not argue, on appeal, that any of the qualifying purposes applies.
The State only argues that ER 404 does not cover Gaston's urges admission because
urges are not "acts." Thus we do not address whether "urges" could be considered
motive testimony under ER 404(b). Furthermore, an ER 404(b) analysis is immaterial in
Dennis Gaston's prosecution. If the State contends no exception applies, the trial court
should have precluded the evidence and not engaged in any ER 404(b) analysis.
The State also contends that it introduced the admission of Dennis Gaston simply
as a statement and not for the purpose of establishing that Gaston actually had urges or
that he acted on those urges. The State fails to explain what relevance the statement
would have to the charges brought against Gaston, assuming the State's contention to be
true. ER 404(b) is designed to prevent the State from suggesting that a defendant is
guilty because he or she is a criminal-type person who would be likely to commit the
crime charged. Foxhaven, 161 Wn.2d at 175; State v. Lough, 125 Wn.2d 847, 859, 889
P.2d487 (1995). The only purpose behind the State's introduction of Dennis Gaston's
admission of inclinations would be for the purpose of telling the jury that Gaston
possesses a trait that would lead him to commit the crime charged.
Issue 5: Whether evidence ofDennis Gaston's urges was prejudicial?
Answer 5: Yes.
A holding that the trial court committed error by permitting testimony of Dennis
Gaston's impulses does not end our analysis. Evidentiary error is only grounds for
reversal ifit is prejudicial. State v. Bourgeois, 133 Wn.2d 389, 403,945 P.2d 1120
(1997). An error is prejudicial if, within reasonable probabilities, had the error not
occurred, the outcome ofthe trial would have been materially affected. State v. Asaeli,
150 Wn. App. at 579. Stated clearer, the error constitutes prejudice ifit probably
impacted the jury verdict.
Other than Dennis Gaston's recorded police interview, the State of Washington
presented J.W.'s inconsistent testimony to establish criminal conduct of Gaston. In other
words, the State lacked strong evidence of the crime. Thus, the "urges" testimony was
likely detrimental to Dennis Gaston's defense. In the words of the trial court, the
evidence could be "the knock-down blow." Thus, we reverse Dennis Gaston's
conviction.
Issue 6: Whether Dennis Gaston's trial counsel was ineffective by failing to
preserve his ER 404(b) objection to his "urges" testimony or for failing to request a
limiting instruction for the testimony?
Answer 6: We do not address this question.
Dennis Gaston contends that, if trial counsel failed to preserve for appeal his ER
404(b) objection, he had ineffective assistance of counsel. He also contends that his trial
counsel was ineffective because he failed to request an ER 105 limiting instruction for the
urges testimony. We need not address these two contentions, since we hold that counsel
preserved the objection and we sustain the objection on appeal.
Issue 7: Whether Dennis Gaston preserved at trial the argument that the trial
court erred by admitting J. W. 's testimony about Dennis Gaston's feelings?
Answer 7: Yes.
Dennis Gaston contends that the trial court erred by admitting testimony from J. W.
in which he speculates about how Gaston felt during the assault. We have already ruled
that Gaston's conviction must be reversed and thus need not address this additional
assignment of error. We address the assignment, nonetheless, for purposes of instruction
for the new trial on remand. We address other assigned errors later for the same reason.
The State argues that Gaston waived this assignment of error by failing to renew
his objection to a reworded question at trial. The relevant passage from trial reads:
Q [the State] What do you mean, you didn't want him to feel uncomfortable. A [J.W.] Well, he was enjoying what he was doing, but [Defense Counsel]: Your Honor, I'm going to object as far as it being speculative. THE COURT: If you could rephrase the question. [Prosecutor]: Okay. Q What do you mean that you didn't want him to feel uncomfortable in-when you were looking at him. We can't-You don't
really know what he was feeling, so [Defense Counsel]: Your honor, I'm going object as far as the form of the question. It's now coaching. THE COURT: Overruled. Q I just want you to say why you were not wanting him to feel uncomfortable. A He was enjoying what he was doing and I don't like seeing people, you know, uncomfortable or anything, and-not only that but I didn't say anything because I wasn't sure what to say.
The State focuses on the last question posed to lW. in this exchange and notes
that Dennis Gaston did not specifically raise an objection to the question. The State
claims it rephrased an earlier question to which Gaston objected and that the lack of
objection to the second question implies that Gaston approved of the rephrasing.
Actually, the second remark by the State was not in the form of a question but a direction
to lW. as to the nature of the previous question. Alex Trebek would have been unhappy.
Thus, there was no question to which Gaston could object. Since the trial court had
already overruled objections to two questions, we hold that Gaston preserved his
objection for appeal.
Without proper objection, there is no basis for appellate review. State v. Boast, 87
Wn.2d 447,451,553 P.2d 1322 (1976). When a party objects to evidence in a pretrial
motion in limine, the party need not object at trial to the introduction of the same
evidence. State v. Powell, 126 Wn.2d at 255 (1995); Millican v. N.A. Degerstrom, Inc.,
177 Wn. App. at 889 (2013); State v. Ramirez, 46 Wn. App. at 229 (1986). The same
rule should apply when a party seeks to admit the same evidence to which the opposing
party immediately before objected during trial.
Issue 8: Whether the trial court erred by admitting 1. W. 's testimony about Dennis
Gaston's feelings?
Answer 8: Yes.
Dennis Gaston contends that lW.'s testimony that Gaston "enjoyed" the touching
was inadmissible as opinion testimony unsupported by a foundation. We agree.
ER 701 governs lay witness opinion testimony; the rule declares:
If the witness is not testifYing as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination ofa fact in issue, and ( c) not based on scientific, technical, or other specialized knowledge within the scope of rule 702.
Testimony based on inferences from the evidence is not improper opinion
testimony. City ofSeattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).
Nevertheless, an opinion that lacks proper foundation is not admissible under ER 701.
City ofSeattle v. Heatley, 70 Wn. App. at 579. A layperson's opinion is admissible only
if it has a rational basis, which is the same as to say that the opinion must be based on
knowledge. State v. Kunze, 97 Wn. App. 832, 850, 988 P.2d 977 (1999). A lay opinion
is simply opinion based on knowledge derived from the witness's own perceptions, and
from which a reasonable person could rationally infer the subject matter of the offered
opinion. State v. Kunze, 97 Wn. App. at 850. A lay person's observation of intoxication
is the iconic example of a permissible lay opinion. State v. Montgomery, 163 Wn.2d 577,
591, 183 P.3d 267 (2008); City o/Seattle v. Heatley, 70 Wn. App. at 580.
The testimony of J.W. that Dennis Gaston enjoyed the touching was not preceded
by any testimony from J.W. as to the basis of his conclusion of enjoyment. Obviously,
J.W. was adjacent to Gaston at the time of the touching, and J.W. could have seen
expressions of pleasure on Gaston's face. J.W. disclosed that he looked at Gaston's face
during the touching. Nevertheless, he never testified that he looked upon Gaston's face at
the time he concluded that Gaston enjoyed the offensive touching. J.W. also testified he
looked elsewhere during the touching. More importantly, J.W. divulged no physical
manifestations that he observed on the face of Gaston nor any other observations that led
him to conclude that Gaston enjoyed the touching.
In resolving this issue on appeal, we juxtapose two Washington decisions with
contrary results: State v. Farr-Lenzini, 93 Wn. App. 453, 970 P.2d 313 (1999), and City
o/Seattle v. Heatley, 70 Wn. App. 573 (1993). In State v. Farr-Lenzini, we reversed Lisa
Ann Farr-Lenzini's conviction for attempting to elude a pursuing law enforcement
officer. The officer testified that Farr-Lenzini exhibited that she "was attempting to get
away from me and knew I was back there and refusing to stop." 93 Wn. App. at 458.
We ruled the admission of the evidence to be harmful error. The officer could not
provide a lay opinion because he did not testifY to any observations he made to
II
iI No. 32723-0-III , i
1 State v. Gaston
I ! distinguish between a distracted, speeding driver and an eluding driver. The State
I attempted to qualify the officer as an expert witness, but the record did not indicate that
I the trooper was qualified to testify as an expert on the driver's state of mind. I In City ofSeattle v. Heatley, we affirmed Robert Heatley's conviction for driving
while intoxicated and negligent driving. Heatley sped and weaved on the road. A
responding officer observed that Heatley's eyes were bloodshot and watery, his face was
flushed, his balance was unsteady, and he exuded a "strong odor" of alcohol on his
breath. The officer also heard slurred speech. The officer conducted field sobriety tests,
during which Heatley swayed during a balance test and lost his balance while walking toe
to heal. We agreed with the trial court's admission of the officer's conclusion that
Heatley was intoxicated, because of the officer's physical observations.
Because we have already declared the admission of other testimony to be harmful
error, we do not address whether admission of J. W.'s opinion testimony without a proper
foundation constituted reversible error.
Issue 9: Whether significant portions ofthe mother's testimony constituted
prejudicial hearsay, improper vouching, or irrelevant evidence and whether trial counsel
was ineffective for failing to object to the evidence on the respective grounds?
Answer 9: No. The trial court did not admit hearsay. We do not address the other
contentions because Dennis Gaston does not cite to the portions ofthe trial transcript
that he claims contains inadmissible testimony.
Dennis Gaston brought a motion in limine to preclude Julie Woolery, J.W.'s
mother, as a witness. The motion assumed that Woolery would only testifY to statements
uttered by J.W., and thus Gaston grounded the motion solely on the hearsay rule. The
trial court did not preclude Woolery as a witness, but ruled that she could not testifY to
statements told her by her son.
On appeal, Dennis Gaston argues that some of Julie Woolery's testimony
constituted prejudicial hearsay. We disagree. Consistent with the trial court's order in
limine, Woolery did not repeat any statements spoken by J.W. to her. She testified that
lW. made a statement, after which she took particular actions, but she did not reveal the
content of the statement.. If the significance of an offered statement lies solely in the fact
that it was made, no issue is raised as to the truth of anything asserted, and that statement
is not hearsay. Cranwell v. Mesec, 77 Wn. App. 90, 101,890 P.2d 491 (1995). The
testimony, about which Gaston complains, is one step further removed from being
hearsay. Woolery did not disclose the contents of any of J.W.'s statements, let alone
offer a statement for the truth of the contents.
Dennis Gaston also complains about some of Julie Woolery's testimony being
irrelevant and impermissible vouching of J.W.'s allegations. In his discussion of this
testimony, he refers to all of the testimony in general, rather than citing specific passages
of testimony or particular questions and answers. RAP 10.3(a)(6) requires an appellant to
cite to the relevant portions of the record in the argument section of his brief. A party
must cite to the record for the testimony about which he assigns error. Glazer v. Adams,
64 Wn.2d 144,149,391 P.2d 195 (1964). Therefore, we decline to address these further
assignments of error regarding Julie Woolery's testimony. Since we will not address the
merits ofthese assignments of error, we cannot determine if Gaston's trial counsel
committed error by failing to object to testimony on relevance and impermissible
vouching grounds. Trial counsel did object to some of the testimony on relevance
grounds.
Issue 10: Whether the prosecutor committed misconduct during closing argument
by sympathizing with the jury, by arguing facts not in evidence, and by improperly
vouching for J. W. ?
Answer 10: No. The prosecution did not argue facts not in evidence nor
improperly vouch for J. W.
Dennis Gaston also contends that the prosecution committed misconduct during
closing argument by misstating the evidence, improperly vouching for a witness, and
appealing to prejudice. The State responds that the prosecutor's statements in closing did
not rise to misconduct and, even if the statements did, the appropriate remedy was a
curative instruction. We conclude that the prosecutor did not commit misconduct.
This court reviews a prosecutor's comments during closing argument in the
context of the total argument, the issues in the case, the evidence addressed in the
argument, and the jury instructions. State v. Boehning, 127 Wn. App. 511, 519,111 P.3d
899 (2005). A defendant claiming prosecutorial misconduct must show that the
prosecutor's conduct was both improper and prejudicial in the context of the entire record
and circumstances at trial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012).
A prosecutor's statements are improper if they misstate the applicable law, shift
the burden to the defense, mischaracterize the role of the jury, or invite the jury to
determine guilt on improper grounds. State v. Emery, 174 Wn.2d at 759-60; State v.
Boehning, 127 Wn. App. at 522. Even if the defendant shows the comments were
improper, the error does not require reversal unless the appellate court determines there is
a substantial likelihood the misconduct affected the jury's verdict. State v. Gentry, 125
Wn.2d 570, 641, 888 P.2d 1105 (1995), aff'd sub nom. Gentry v. Sinclair, 705 F.3d 884
(9th Cir. 20l3). If a defendant did not object to a prosecutor's alleged misconduct at
trial, he or she is deemed to have waived any error, unless the misconduct was so flagrant
and ill intentioned that a jury instruction could not have cured the resulting prejudice.
State v. Gentry, 125 Wn.2d at 596. Reviewing courts should focus less on whether the
prosecutor's misconduct was flagrant or ill intentioned and more on whether the resulting
prejudice could have been cured. State v. Emery, 174 Wn.2d at 762. Under this
heightened standard, the defendant must show that (1) no curative instruction would have
obviated any prejudicial effect on the jury, and (2) the misconduct resulted in prejudice
that had a substantial likelihood of affecting the jury verdict. State v. Emery, 174 Wn.2d
at 760-61. Because Dennis Gaston did not object during closing argument, he now bears
the burden on appeal to demonstrate that the State's comments were so prejudicial that no
curative instruction could have remedied their effect and that the comments had a
substantial likelihood of affecting the jury verdict.
Dennis Gaston contends that the prosecutor committed misconduct by misstating
the evidence. In closing argument, the prosecuting attorney has wide latitude to argue
reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d 438, 448, 258
P.3d 43 (2011). However, a prosecutor may not make statements that are unsupported by
the evidence and prejudice the defendant. State v. Boehning, 127 Wn. App. at 519. A
prosecutor's comments are reviewed in the context of the entire argument, the issues in
the case, the evidence addressed in the argument and the instructions given to the jury.
State v. SchUchtmann, 114 Wn. App. 162, 167, 58 P.3d 901 (2002).
State's counsel below misstated the evidence. During trial testimony, J.W.
speculated that Dennis Gaston was enjoying touching l. W. During summations, the
prosecutor repeatedly claimed that l.W. testified that Gaston asked l.W. whether J.W.
enjoyed the touching. No chain of reasonable inferences led from one statement to the
other. We anticipate the prosecutor refraining from making this error during the retrial.
In the context of the first trial, however, the error was not prejudicial because, at each
time the State misstated the evidence, the State coupled the mistake with l.W.'s
testimony that Gaston asked ifhe "was getting hard." VRP at 86.
Dennis Gaston contends that the prosecutor improperly vouched for l.W. by
30 No. 32723-0-111 State v. Gaston
referring to his testimony as "candid." The State responds that the prosecutor's reference
was a permissible inference from the evidence. We agree with the State.
The prosecutor and any other counsel commits misconduct by stating a personal
belief as to the credibility of a witness. State v. Warren, 165 Wn.2d 17, 30, 195 P3d 940
(2008). Prosecutors may, however, argue an inference from the evidence, and prejudicial
error will not be found unless counsel unmistakably expresses a personal opinion. State
v. Brett, 126 Wn.2d l36, 175,892 P.2d 29 (1995). The defendant bears the burden to
show that the prosecutor's statements constituted a clear and unmistakable expression of
the prosecutor's personal opinion, divorced from the evidence. State v. McKenzie, 157
Wn.2d 44, 55, l34 P.3d 221 (2006).
In State v. Sargent, 40 Wn. App. 340, 343, 698 P.2d 598 (1985), the prosecutor
stated "I believe Jerry Lee Brown. I believe him when he tells us that he talked to the
defendant, that the defendant told him that he had beaten his wife in the past[.]"
(Emphasis omitted.) This court held that the statement was misconduct because it was
clearly and unmistakably an expression of the prosecutor's personal opinion. In State v.
Ramos, 164 Wn. App 327, 341 n.4, 263 P3d 1268 (2011), this court found improper
vouching when the prosecutor argued that "the truth of the matter is [the police
witnesses] were just telling you what they saw and they are not being anything less than
100 percent candid."
We contrast State v. Warren, 165 Wn.2d 17 (2008) with State v. Sargent and State
v. Ramos. In State v. Warren, the high court held that the prosecutor did not commit
misconduct when he argued that "these statements had a 'ring of truth' and the detail was
not the kind one would expect a 14-year-old to know absent abuse." 165 Wn.2d at 30.
The statement was not an explicit statement of personal opinion.
Dennis Gaston's prosecutor, on three different occasions, discussed J.W. 's candor
on the stand. All of the statements, when taken in context, were inferences from
evidence. The prosecution couched each statement with facts about J.W.'s demeanor to
support the argument that the witness was being honest. During Gaston's closing
argument, he placed J.W.'s credibility into question. In response, the prosecutor
emphasized IW,'s demeanor to argue his credibility. The State should not be helpless in
responding to an attack on its principal witness's credibility.
Dennis Gaston contends that, by making statements about what our children go
through, the prosecutor improperly appealed to the jurors' sympathy. The State responds
that the prosecutor was only acknowledging the difficulty of the situation. We agree with
the State.
A prosecutor, as a quasi-judicial officer, has a duty to ensure a verdict free of
prejudice and based on reason. State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186
(1984). Nevertheless, the heinous nature of a crime and its effect on the victim can be
proper argument. Claflin, 38 Wn. App. at 850. We hold that the prosecutor's statement
was a permissible comment on the effect of the crime on J.W.
32 No. 32723-0-III State v. Gaston
Issue 11: Whether cumulative error should result in a remand/or a new trial?
Answer 11: We do not address this question.
Dennis Gaston next contends that the cumulative error doctrine applies and this
court should remand for a new triaL Under the cumulative error doctrine, a defendant
may be entitled to a new trial when the trial court's multiple errors combined to deny the
defendant a fair triaL In re Pers. Restraint o/Lord, 123 Wn.2d 296,332,868 P.2d 835
(1994). We need not address this question since we remand for a new trial on the basis of
one error.
Issue 12: Whether the trial court erred when it imposed a community custody
condition barring Dennis Gastonfrom viewing or possessing pornographic material
because the condition is not reasonably crime related, is unconstitutionally vague, and is
not narrowly tailored?
Answer 12: We do not address this question.
Finally, Dennis Gaston contends that the trial court erred by imposing a
community custody condition barring him from viewing or possessing pornographic
materiaL He argues that this condition is not reasonably crime related, is
unconstitutionally vague, and is not narrowly tailored. The State concedes this argument.
We do not address the argument, however, since we vacate Dennis Gaston's conviction
and sentence.
33 No. 32723-0-111 State v. Gaston
STATEMENT OF ADDITIONAL GROUNDS
Dennis Gaston raises four errors in his statement of additional grounds: (1) J.W.
testified twice that nothing happened in the spring of20l3, (2) J.W. testified that his
mother told him that the molestation occurred on a Saturday, (3) J.W.'s story changed
multiple times, and (4) potential witnesses were never questioned or interviewed.
A criminal defendant may submit a pro se statement of additional grounds for
review "to identify and discuss those matters related to the decision under review that the
defendant believes have not been adequately addressed by the brief filed by the
defendant's counsel." RAP 10.10(a). The rule additionally provides in part:
Reference to the record and citation to authorities are not necessary or required, but the appellate court will not consider a defendant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors. Except as required in cases in which counsel files a motion to withdraw as set forth in rule 18.3(a)(2), the appellate court is not obligated to search the record in support of claims made in a defendant's statement of additional grounds for review. Only documents that are contained in the record on review should be attached or referred to in the statement.
RAP 10.10(c) (alteration in original); see also State v. Alvarado, 164 Wn.2d 556, 569,
192 P.3d 345 (2008). This court does not consider arguments that are repetitive of
defense counsel's brief. State v. Calvin, 176 Wn. App. 1,26,316 P.3d 496 (20l3),
review granted in part, cause remanded by 183 Wn.2d 1013,353 P.3d 640 (2015).
Dennis Gaston's first two contentions merely restate testimony admitted as
evidence at trial without contending that the testimony was inadmissible. A recitation of
testimony presents no assignment of error. Gaston's third complaint that l.W. changed
his story multiple times was the basis for his defense. His defense counsel explored the
inconsistent testimony throughout the trial.
Finally, Dennis Gaston quarrels that counsel failed to summon to testifY potential
witnesses. This allegation falls outside of the record on review. Because the allegation is
unsupported by the record or any other information, we do not address the contention.
CONCLUSION
The trial court committed evidentiary error during the trial of Dennis Gaston. At
least one of the errors was harmful and demands a new trial. We vacate Gaston's
judgment and sentence and remand for a new trial.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey, 1.