IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71822-3-1
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION ERIC STEVEN SCHNEIDER,
Appellant. FILED: April 25, 2016
Leach, J. — Eric Schneider appeals his convictions on two counts of
second degree rape of a child, one count of third degree rape of a child, and one
count of first degree incest. Primarily, he challenges the sufficiency of the
evidence to support multiple convictions and two trial court decisions about
admitting evidence: (1) the admission of ER 404(b) evidence to show a common
scheme or plan and (2) the exclusion of evidence of the victim's report of a rape
by a third party. The record sufficiently supports each conviction and each
challenged evidence decision. But because the trial court did not make an
individualized inquiry into Schneider's ability to pay costs, we reverse that part of
his sentence imposing costs and remand for further proceedings consistent with
this opinion. No. 71822-3-1/2
FACTS
Substantive Facts
J.S. was born March 1, 1995, to Elizabeth.1 In December 2005, Elizabeth
married Eric Schneider. Schneider often took care of J.S. and her two siblings
while Elizabeth worked nights.
J.S. reported the following facts in police interviews and trial testimony.
Schneider began sexually abusing J.S. after he married her mother. The first
incident occurred while Schneider and the three children were driving at night to
pick up Elizabeth. After Schneider stopped the car near the woods, he told the
boys to get out and play. He then took J.S. onto his lap and attempted to
penetrate her vaginally. When she told him that hurt too much, he penetrated
her anally instead. Later, again in a vehicle, Schneider raped J.S. vaginally for
the first time after taking her to a father-daughter dance.
J.S. could recall only these occurrences in detail; "[t]he rest of the times,
they just blended in." She testified that the rapes occurred once per week in the
beginning and increased to three to four times per week when she was 14 and
15. Schneider and J.S. had oral sex. Schneider penetrated J.S. using sex toys.
At other times, he penetrated her with a handgun. He asked J.S. to wear her
1 To protect the anonymity of abuse victims, we use first names for their adult relatives. -2- No. 71822-3-1/3
mother's lingerie and high-heeled shoes. He showed her pornography and
asked her to imitate what it showed.
Schneider and J.S. often had sex in vehicles, but Schneider also took her
to empty houses under construction and to motel rooms. Schneider also had sex
with J.S. in her parents' bedroom and her own bedroom and, less often, in the
living room.
J.S. described Schneider as being gentle with her at first but violent as
she grew older. He hit her. He put a belt around her throat and held it during
sex. He penetrated her with a sex toy in one orifice while he was penetrating her
in another. After he raped her in the shower, he urinated on her. Once, he
carved his initials on her pubis with a knife, making her bleed. When J.S. told
Schneider she wanted to stop having sex, Schneider told her he would kill her if
she told anyone about the abuse. Schneider also told J.S. he had been "fixed"
so they did not need to use condoms.2
J.S. indicated in interviews that Elizabeth's ex-partner, John, molested
J.S. when she was five years old. J.S. told Schneider about the abuse. In 2011,
Schneider took her to an appointment with Torr Lindberg, a mental health
counselor. During the session, J.S. told Lindberg that Schneider had not abused
2 J.S. also reported, accurately, that Schneider is circumcised. -3- No. 71822-3-1/4
her.3 J.S. also spoke to Annetta Spicer, formerly Schneider's family law lawyer,
as part of a child custody dispute between Schneider and his ex-wife, Jessica.
Spicer told J.S. that Jessica's sister, A.S., had alleged Schneider abused her.
J.S. told Spicer that Schneider had not abused her.
J.S. told her mother about Schneider's abuse in October 2011. Schneider
had last raped her about two weeks earlier, after Schneider and Elizabeth had
separated. J.S. reported the rapes during a sexual assault examination with
Nurse Joanne Mettler the next week. Nurse Mettler examined J.S. for sexually
transmitted diseases, infections, and acute and healed injuries. She found
nothing out of the ordinary. She later testified that it is common to find no
physical evidence of violent rape when examining victims. Mettler also did not
see any sign of scarring in J.S.'s pubic area. Mettler testified that J.S.'s hymen
"looks very thick and very wavy and redundant." She further explained that
because tissue heals quickly in the vaginal and anal areas, J.S.'s reports of
bleeding after intercourse were not inconsistent with her lack of physical signs.
Procedural Facts
The State charged Schneider with two counts of rape of a child in the
second degree between June 1, 2007, and February 28, 2009, one count of rape
of a child in the third degree between March 1, 2009, and February 28, 2011, and
3 J.S. testified that she did not tell Lindberg about the abuse because Schneider was outside in the car and she was afraid of him. -4- No. 71822-3-1/5
one count of incest in the first degree between March 1, 2011, and October 15,
2011.
Before trial, the trial court excluded J.S.'s statements to Mettler and
Lindberg that John abused her. The court found that those statements' risk of
unfair prejudice, confusion, or misleading substantially outweighed their probative
value.4
The trial court admitted A.S.'s testimony that Schneider raped her when
she was a young girl. The trial court found that the alleged rapes of A.S. and J.S.
were "markedly similar" and ruled that the State could present evidence of the
earlier rapes to show "a general plan, a design to fulfill [Schneider's] sexual
compulsions."
A.S.'s sister Jessica, married Eric Schneider when A.S. was between 7
and 9. Schneider and Jessica moved to Spokane when A.S. was about 11. A.S.
visited from California in November and December 1999, when Jessica was
about to have her third child.5 A.S. reported that Schneider forcibly raped her
twice during that trip.
The first time, as A.S. slept on a couch in the living room, Schneider came
to her, lifted the covers, lay on her, pulled down her pants, and had vaginal sex
with her. A.S. cried and tried to stop it, but Schneider put his hand over her
4 The court declined to revisit this ruling at trial. 5 The State conceded this date in its closing. -5- No. 71822-3-1/6
mouth or throat and held her hand over her head. Schneider told her that if she
told anyone, he would hurt Jessica or Jessica's daughters. A.S. also reported
that during that trip Schneider raped her in the bedroom he shared with Jessica
and in the children's bedroom.
The second time, Schneider asked A.S. to dress in her sister's lingerie
and heels, but she refused. When A.S. also refused to have sex, Schneider
again forcibly raped her. When Jessica and Schneider separated in April 2000,
Jessica moved to Boardman, Oregon. A.S. visited her there. After she arrived,
Schneider unexpectedly came and stayed. Schneider raped A.S. multiple times
in Oregon, though she remembered only one incident in detail. While the family
was riding horses, A.S. got horse manure on herself. Jessica told her to go to
the apartment with Schneider. At the apartment, Schneider pushed A.S. down
and raped her on the living room floor. A.S. first reported the rapes in 2003. She
gave statements to the Riverside police that year and later to police in Oregon.6
Neither department initiated charges.
A.S. testified she did not know J.S., had never spoken with her, and had
not read about J.S.'s allegations against Schneider. A.S. had, however,
reviewed legal documents for the case. The State told the jury in its opening
6 A.S. reported in a 2014 interview that Schneider put his hand around her neck during sex; that Schneider raped her orally and anally, as well as vaginally; that he had videotaped the rape in Schneider and Jessica's bedroom; and that Schneider asked her to wear her sister's underwear. -6- No. 71822-3-1/7
statement that A.S. and J.S. did not know each other, had never met, and had
never spoken to each other.7
In his defense, Schneider offered Lindberg's testimony that J.S. told him
Schneider had not abused her. He also offered testimony from both Lindberg
and Spicer that J.S. had denied Schneider abused her. But the trial court
excluded Spicer's testimony that she told J.S. about A.S.'s allegations.8
The jury found Schneider guilty on all four counts. The court sentenced
Schneider to life in prison with a minimum term of 280 months. The court also
imposed $1,487.50 in financial obligations. It later found Schneider indigent and
thus entitled to public funds to pay the costs of transcripts for his appeal.
STANDARD OF REVIEW
To affirm a criminal conviction, this court must find that the record includes
sufficient evidence for a reasonable person to find the State has proved every
element of the crime beyond a reasonable doubt.9 We view the evidence in the
light most favorable to the State.10 A party challenging sufficiency of the
evidence admits the truth of the State's evidence and all reasonable inferences
7 In closing, the State reiterated there was "no evidence that [J.S.] knew anything about [A.S.] or that [A.S.] knew anything about [J.S.]." 8 The court did not offer its reasons. 9 State v. Jensen. 125 Wn. App. 319, 325-26, 104 P.3d 717 (2005). 10 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). -7- No. 71822-3-1/8
from the evidence.11 We defer to the trier of fact to resolve conflicting testimony,
witness credibility, and the persuasiveness of evidence.12
This court reviews questions of law de novo, including alleged violations of
a defendant's Sixth Amendment rights to present a complete defense and
confront witnesses.13 We also review de novo, as a question of law, the trial
court's interpretation of an evidentiary rule.14 But we review the trial court's
decision to admit or exclude evidence for abuse of discretion.15 Abuse occurs
when the trial court makes a manifestly unreasonable decision or bases its
decision on untenable grounds or reasons.16
ANALYSIS
Sufficiency of the Evidence To Support Unanimous Verdicts
First, Schneider challenges the sufficiency of the evidence to support a
unanimous verdict on all four counts. The State had to prove that Schneider had
sexual intercourse with J.S. twice when she was between 12 and 14, that he had
intercourse with J.S. when she was between 14 and 16, and that he had
intercourse with J.S. between March 1 and October 15, 2011.
11 State v. Edwards. 171 Wn. App. 379, 401, 294 P.3d 708 (2012). 12 State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004). 13 State v. Jones. 168 Wn.2d 713, 719, 230 P.3d 576 (2010). 14 State v. Gunderson. 181 Wn.2d 916, 922, 337 P.3d 1090 (2014). 15 Gunderson. 181 Wn.2d at 922. 16 Gunderson. 181 Wn.2d at 922 (quoting State v. Brown. 132 Wn.2d 529, 572, 940 P.2d 546 (1997)). -8- No. 71822-3-1/9
The constitutional right to a jury trial requires that the jury be unanimous
as to the specific act the defendant committed for each crime.17 To protect this
right, the State may elect an act to rely on for conviction. Otherwise, the court
must instruct the jury "that all 12 jurors must agree that the same underlying
criminal act has been proved beyond a reasonable doubt."18 "In sexual abuse
cases where multiple counts are alleged to have occurred within the same
charging period, the State need not elect particular acts associated with each
count so long as the evidence 'clearly delineate[s] specific and distinct incidents
of sexual abuse' during the charging periods."19 When the State charges
identical counts, the trial court must also instruct the jury "that they are to find
'separate and distinct acts' for each count."20
Schneider concedes that the trial court gave the required instructions but
argues that the State presented insufficient evidence at trial for the jury to convict
him unanimously. "Evidence is sufficient to support a conviction if, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
17 State v. Petrich. 101 Wn.2d 566, 572, 683 P.2d 173 (1984) holding modified by State v. Kitchen. 110 Wn.2d 403, 756 P.2d 105 (1988). 18 Petrich. 101 Wn.2dat572. 19 State v. Haves. 81 Wn. App. 425, 431, 914 P.2d 788 (1996) (alteration in original) (quoting State v. Newman, 63 Wn. App. 841, 851, 822 P.2d 308 (1992)). 20 Hayes, 81 Wn. App. at 431. -9- No. 71822-3-1/10
doubt."21 Due process imposes three requirements to sustain a conviction of a
resident child molester based on generic testimony from an alleged victim:
First, the alleged victim must describe the kind of act or acts with sufficient specificity to allow the trier of fact to determine what offense, if any, has been committed. Second, the alleged victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged by the prosecution. Third, the alleged victim must be able to describe the general time period in which the acts occurred.[22]
These requirements balance the due process rights of accused resident child
molesters against the risk of immunizing them from prosecution due to the nature
of their crimes.23
Victims' undifferentiated accounts of multiple incidents of abuse may fail
this test. In State v. Edwards.24 Division Two of this court used this test to uphold
a defendant's conviction for one count of child molestation and affirm the trial
court's vacation of his conviction on a second count. After the jury convicted on
two identical counts of child molestation, the trial court found insufficient evidence
existed for juror unanimity on count 2 and vacated that conviction.25 Division
21 Haves. 81 Wn. App. at 430. 22 Haves. 81 Wn. App. at 438; see People v. Jones. 51 Cal. 3d 294, 315- 16, 792 P.2d 643, 270 Cal. Rptr. 611 (1990) (holding that specifics regarding date, time, place, and circumstance are factors regarding credibility, not necessary elements that need to be proved to sustain a conviction). 23 Haves. 81 Wn. App. at 438. 24 171 Wn. App. 379, 403, 294 P.3d 708 (2012). 25 Edwards, 171 Wn. App. at 403. Division Two reviewed this decision de novo.
-10- No. 71822-3-1/11
Two decided that (1) based on the victim's undifferentiated accounts of 10-15
incidents, the jurors could not have differentiated between the alleged acts; (2)
only the victim's testimony about the first time the defendant abused her was
specific enough to allow the jury to find the defendant committed the crime; and
(3) apart from the victim's testimony that the first incident occurred when she was
five or six, "[t]here was no other evidence defining the time period in which any
other act occurred."26 Because the evidence did not "clearly delineate between
specific and distinct incidents . . . during the charging period," the trial court
properly vacated count 2.27
Similarly, in State v. Jensen,28 Division Two affirmed two counts of child
molestation but reversed a third count. The victim had testified to one incident
where the defendant entered her room and "touched her in her 'private spot'" and
another where he entered her room "and touched her breast."29 The victim also
testified that the defendant "touched her private area '[a] few times'" and had
entered her room at night two other times.30 The court reversed the defendant's
third conviction because the victim did not describe "with sufficient specificity" a
third incident of sexual contact.31
26 Edwards. 171 Wn. App. at 402-03. 27 Edwards. 171 Wn. App. at 403. 28 125 Wn. App. 319, 327-28, 104 P.3d 717 (2005). 29 Jensen. 125 Wn. App. at 327. 30 Jensen. 125 Wn. App. at 327 (alteration in original). 31 Jensen. 125 Wn. App. at 328. -11- No. 71822-3-1/12
In contrast, here, sufficient evidence supports each conviction. First, a
rational juror would be able to tell what crime Schneider committed from J.S.'s
testimony. The State did not need evidence about details like times and places
of the assaults; it was enough that J.S.'s testimony described Schneider's sex
acts with her "with sufficient specificity" to allow the jury to conclude that those
acts constituted "intercourse." Unlike the witness in Edwards, who only
described the defendant's acts on one occasion, J.S. described Schneider
penetrating her vaginally, anally, and orally, with his penis and with sex toys.
This is analogous to the victim's testimony in Haves that the defendant "'put his
private part in mine.'"32 Coupled with J.S.'s description of the usual course of
conduct, that testimony satisfied the first prong.33 Likewise, the jury could
determine the nature of Schneider's acts for each count from J.S.'s testimony.
The evidence also satisfies the second prong. In Haves, the victim
testified that sexual intercourse occurred "at least 'four times' and some '[t]wo or
three times a week' between July 1, 1990 and May 31, 1992."34 J.S. gave similar
testimony. She estimated Schneider raped her three times per week when she
was 12 and 13, three or four times per week when she was 14 and 15, and
continued after she was 16. Unlike the victim in Jensen. J.S. alleges more than
32 Haves. 81 Wn. App. at 438. 33 Haves. 81 Wn. App. at 438. 34 Haves. 81 Wn. App. at 435 (alteration in original). -12- No. 71822-3-1/13
two incidents of sexual contact. J.S. thus "describe[d] the number of acts
committed with sufficient certainty to support each" count.35
The State's evidence against Schneider also satisfied the third prong.
Unlike in Edwards, where the State offered testimony about one specific incident
when the victim was 5 or 6 but "no evidence defining the time period in which any
other act occurred,"36 J.S. described the general time period of the sex acts: she
testified that Schneider raped her three times per week when she was 12 and 13,
and three or four times per week when she was 14 and 15, and continuing after
she was 16.
In sum, though J.S. could only provide details about two specific incidents
when Schneider raped her, she described the nature, frequency, and period of
many others. Schneider argues that this generic, undifferentiated testimony was
not sufficient to support his convictions. But Washington courts have affirmed
multiple count sexual assault charges where the State relied on similar generic
testimony.37 J.S.'s testimony satisfied the three-part test for each of the charging
periods and counts charged.
35 See Haves. 81 Wn. App. at 438. 36 Edwards. 171 Wn. App. at 403. 37 Haves. 81 Wn. App. at 431. -13- No. 71822-3-1/14
Admission of Schneider's Alleged Prior Sexual Offenses under ER 404(b)
Schneider makes two challenges to the trial court's admission of evidence
of accusations of earlier sexual offenses to show a common scheme or plan, as
permitted by ER 404(b). First, he claims that the record does not support several
findings of fact the trial court made to support its decision. Second, he asserts
that the alleged earlier offenses lacked enough similarity to the charged offenses
to show a common scheme or plan.
The Trial Court's Findings of Fact forER 404(b) Analysis
We review the trial court's findings of fact to see if the record contains
substantial evidence to support them.38 Substantial evidence is evidence of
sufficient quantity "to persuade a fair-minded, rational person."39 The challenging
party bears the burden of showing the absence of substantial evidence to
support the finding.40
Before jury selection, the trial court considered the State's request to
present evidence of A.S.'s accusations against Schneider. The parties agreed to
the court's consideration of various interview transcripts, a police report and
notes, a video recording, and an audio recording. After considering these
materials, the trial judge provided a detailed oral decision explaining his decision
38 In re Pers. Restraint of Davis. 152 Wn.2d 647, 679, 101 P.3d 1 (2004). 39 Davis. 152Wn.2dat679. 40 Davis. 152Wn.2dat680. -14- No. 71822-3-1/15
to admit this evidence. Over five months after the trial concluded, the State
prepared and the trial judge signed findings of fact and conclusions of law for this
ER 404(b) decision. We address Schneider's challenges to the written findings
in order.
Finding 1 states that Schneider was charged with crimes alleged to have
been committed between 2002 and 2011. In fact, the information alleged
Schneider committed the crimes between 2007 and 2011. The trial court's oral
decision does not describe the charging period. Schneider offers no explanation
why this apparent scrivener's error has any significance.
Finding 2 states the rapes of A.S. occurred in 2001 and 2002. Schneider
contends that the evidence shows that they occurred in late 2000 and 2001. The
trial court's oral decision makes no reference to the year of these events. The
trial court found significant that both A.S. and J.S. were prepubescent at the time
of Schneider's alleged rape of each. Schneider makes no argument that the
one-year difference was material to the trial court's decision or otherwise has
significance.
Finding 5(b) states that A.S. and J.S. were both between the age of 11
and 13 when Schneider first sexually assaulted each. Schneider challenges this
based on a 2010 interview where J.S. reported the abuse began at age 7. As the
State points out, J.S. reported in a 2012 interview that she first met Schneider at
-15- No. 71822-3-1/16
age 10. More significant, the trial court did not rely on the specific age of either
child to support its decision, only that both were prepubescent. Schneider fails to
show how any error about when the abuse started was material to the trial court's
decision or otherwise prejudiced him.
Finding 5(c) states, "Amongst other places, the defendant sexually
assaulted each victim in the bedroom he shared with his then current wife,
providing him access." Schneider argues that the bedroom did not provide
Schneider with access to J.S. because his earliest abuses of her occurred in
vehicles, empty houses, and motel rooms. But the record shows that a number,
if not many, of the rapes of J.S. occurred in Schneider's home. Thus, substantial
evidence supports this finding.
In addition, the trial court's oral decision informs us about the trial court's
reasoning. The bedrooms, vehicles, empty houses, and motel rooms all
provided Schneider with access in a place where his victim was isolated from
help or escape.
Finding 5(d) states, "The defendant sought to obtain the silence of each
victim with threats." Schneider complains that J.S. did not report that Schneider
threatened her in "the early years." As the State notes, the record includes
statements about threats without any limitation about when they occurred. Also,
the trial court's finding does not say when the threats occurred, only that
-16- No. 71822-3-1/17
Schneider made them to each victim. Schneider does not—and the record will
not permit him to—question that each victim reported threats.
Finding 5(j) states, "The defendant video taped his sexual assaults with
both victims." Schneider contends that the record does not support this finding
because A.S. did not report the videotape until years after the event and the
State never found the videotapes. Schneider does not deny that each victim
reported videotaping. The trial court believed the victims, as did the jury later.
Schneider does not show that the trial court abused its discretion by finding the
victims credible.
Thus, Schneider fails to show that any error in fact finding undermines the
trial court's ER 404(b) decision.
The Trial Court's Application ofER 404(b)
ER 404(b) generally prohibits admitting evidence of other crimes "to prove
the character of a person in order to show action in conformity therewith." But
the rule does allow admission of this evidence for other purposes, including as
proof of a common scheme or plan.41 The proponent of this evidence has the
burden of showing a proper purpose. Before admitting the evidence, a trial court
must
"(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought
41 ER 404(b); State v. DeVincentis. 150 Wn.2d 11, 17, 74 P.3d 119 (2003). -17- No. 71822-3-1/18
to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect."[42] Schneider disputes the trial court's resolution of steps 3 and 4.
A common scheme or plan exists "when an individual devises a plan and
uses it repeatedly to perpetrate separate but very similar crimes."43 The
evidence must show "not merely similarity in results, but such occurrence of
common features that the various acts are naturally to be explained as caused by
a general plan of which the charged crime and the prior misconduct are the
individual manifestations."44 This level of similarity must be substantial,45 though
the evidence need not show a unique method of committing the offense.46
In State v. DeVincentis.47 the Supreme Court held the defendant's acts
bore sufficient similarities to the charged crimes because they showed "'that the
defendant had devised a scheme to get to know young people through a safe
channel,"' leading to "'greater familiarity occurring in his own home.'" The victims
were both between 10 and 13 years old. In both cases DeVincentis walked
"around his house in an unusual piece of clothing—bikini or g-string underwear"
42 State v. Slocum. 183 Wn. App. 438, 448, 333 P.3d 541 (2014) (internal quotation marks omitted) (quoting State v. Gresham. 173 Wn.2d 405, 421, 269 P.3d 207 (2012)). 43 State v. Lough. 125 Wn.2d 847, 855, 889 P.2d 487 (1995). 44 Lough. 125 Wn.2d at 860. 45 DeVincentis. 150 Wn.2d at 20. 46 DeVincentis. 150 Wn.2d at 20-21. 47 150 Wn.2d 11, 22, 74 P.3d 119 (2003). -18- No. 71822-3-1/19
to get his victims used to his near nudity.48 The trial court found he "'intended by
the casual wearing of almost no clothes to reduce the children's natural
discomfort or negative reaction to such behavior.'"49 With both victims, the
defendant asked for a massage or gave a massage in a secluded spot, such as a
bedroom, and directed or asked that clothes be taken off. And he had both
victims perform the same sex act.50 Although the previous conduct occurred 15
years before the charged acts, the trial court found these similarities showed a
scheme that allowed DeVincentis to pursue his compulsion for sexual contact
with prepubescent or pubescent girls.51
In State v. Sexsmith,52 Division Three of this court found the following
similarities sufficient to show a common scheme or plan. The defendant
occupied a position of authority over both victims, who were about the same age
when the abuse started. The defendant isolated each victim when he abused
her. The defendant forced each victim to take nude photographs, watch
pornography, and fondle him.53
Here, the trial court found a number of similarities between the charged
crimes and the earlier abuse of A.S.:
48 DeVincentis. 150 Wn.2d at 22. 49 DeVincentis. 150 Wn.2d at 22. 50 DeVincentis. 150 Wn.2d at 22. 51 DeVincentis. 150 Wn.2d at 22. 52 138 Wn. App. 497, 157 P.3d 901 (2007). 53 Sexsmith. 138 Wn. App. at 505. -19- No. 71822-3-1/20
Both victims were prepubescent.
Schneider had access to each victim through his significant other.
Schneider asked each to wear high heels and lingerie.
Schneider reassured each about no risk of pregnancy.
Schneider threatened each.
Each victim's pain excited Schneider.
The sex acts were consistent.
Schneider videotaped his sexual assaults with each victim.
These similarities parallel those found sufficient to show a common scheme or
plan in DeVincentis and Sexsmith.
Schneider points to dissimilarities between the abuse of A.S. and J.S. to
dispute that the similarities found by the trial court show a common scheme or
plan. He contrasts how the abuse started for each. For A.S., Schneider started
with "three or four individual brutal forcible rapes." For J.S., "Schneider began
with her in a car, expressing loving reason for having intercourse with her." The
locations of the abuse differed for the two victims. The abuse of J.S. occurred
frequently over a number of years, while the abuse of A.S. only occurred
sporadically. But, as our Supreme Court concluded in State v. Gresham.54 these
differences "are not so great as to dissuade a reasonable mind from finding that
54 173 Wn.2d 405, 423, 269 P.3d 207 (2012). -20- No. 71822-3-1/21
the instances are naturally to be explained as 'individual manifestations' of the
same plan."
Though Schneider identifies some differences in the abuse of A.S. and
J.S., he fails to show that the trial court abused its discretion in deciding that the
abuse of each showed a common plan.
Balancing Risk of Unfair Prejudice against Probative Value
Schneider argues the trial court erred in concluding the risk of unfair
prejudice from the prior acts evidence did not substantially outweigh that
evidence's probative value.55
The danger of unfair prejudice from prior bad acts is "at its highest" in
sexual assault cases.56 But Washington courts also "give special consideration
to the probative value of such evidence . . . , especially when corroborating
evidence is not available."57 Evidence of similar prior acts is "strongly probative"
in child sex abuse cases because of
55 Conclusion 4 states in part, "The probative value of the evidence of the defendant's rapes of [A.S.] is exceptionally strong because of all the commonalities between the events." 56 State v. Saltarelli. 98 Wn.2d 358, 363, 655 P.2d 697 (1982) ("'Once the accused has been characterized as a person of abnormal bent, driven by biological inclination, it seems relatively easy to arrive at the conclusion that he must be guilty, he could not help but be otherwise.'" (quoting M.C. Slough and J. William Knightly, Other Vices. Other Crimes. 41 Iowa L. Rev. 325, 333-34 (1956))); DeVincentis. 150 Wn.2d at 24. 57 DeVincentis, 150 Wn.2d at 25. -21- No. 71822-3-1/22
the secrecy surrounding child sex abuse, victim vulnerability, the frequent absence of physical evidence of sexual abuse, the public opprobrium connected to such an accusation, a victim's unwillingness to testify, and a lack of confidence in a jury's ability to determine a child witness's credibility.1581
The trial court did not abuse its discretion by finding that the risk of unfair
prejudice does not substantially outweigh the probative value of the evidence of
A.S.'s assault. As in DeVincentis. little corroborative evidence was available to
prove Schneider raped J.S.59 Thus, if the evidence of A.S.'s assaults showed a
common scheme or plan, then it had high probative value. Although the
evidence had a high risk of unfair prejudice, that risk did not "substantially
outweigh" the evidence's probative value.
Completeness of the Record
Schneider also claims that the state of the record before this court denied
him his constitutional rights to appeal and to due process. Since the trial court
looked at only documentary, audio, and visual records to make its ER 404(b)
ruling, Schneider is entitled to have this court review the same record de novo to
decide if the record supports the trial court's findings.
A defendant is constitutionally entitled to a record of sufficient
completeness to permit effective appellate review of the defendant's claims.60 "In
most cases, a reconstructed record will provide the defendant a record of
58 State v. Kennealv. 151 Wn. App. 861, 890, 214 P.3d 200 (2009). 59 See DeVincentis. 150 Wn.2d at 23. 60 State v. Tilton. 149 Wn.2d 775, 781, 72 P.3d 735 (2003). -22- No. 71822-3-1/23
sufficient completeness for effective appellate review."61 A record is sufficient if it
allows counsel to determine what issues to raise and "'place[s] before the
appellate court an equivalent report of the events at trial from which the
appellant's contentions arise.'"62 The absence of a portion of the record does not
require reversal unless the defendant can demonstrate prejudice.63
The trial court did not admit as evidence or have filed all the material it
reviewed in connection with its ER 404(b) decision. Schneider asserts he tried to
recreate the record but was unable to produce a sufficient record. He identifies
as missing a video recording of the 2003 police interview with A.S. and an audio
recording of defense counsel's interview with J.S. Under Schneider's
interpretation, "sufficient completeness" would mean absolute completeness. He
asserts that this court needs not only a transcript of the defense's interview with
J.S., but the audio recording as well, and not only a transcript and audio
recording of the 2003 A.S. interview, but also the video recording. Schneider
asserts that without the missing video and audio recordings, he cannot review
the record to determine what issues and arguments it might support and this
court cannot properly evaluate A.S.'s credibility.
61 Tilton. 149 Wn.2d at 785. 62 Tilton. 149 Wn.2d at 781 (internal quotation marks omitted) (quoting State v. Jackson. 87 Wn.2d 562, 565, 554 P.2d 1347 (1976)). 63 State v. Miller. 40 Wn. App. 483, 488, 698 P.2d 1123 (1985). -23- No. 71822-3-1/24
Weighing credibility is not the function of an appellate court.64 And the
content of both the recordings Schneider identifies as missing have been
adequately preserved: the record contains both an audio recording and a
transcript of the 2003 interview and transcripts of the defense interviews with J.S.
Schneider points out that the transcript of the 2003 police interview with A.S.
contains numerous notations of "unintelligible" or "no response heard." But this
court also has the audio recording of that interview. The reconstructed record
here is adequate for this court and Schneider to make an effective review.
Schneider has shown no prejudice, and this is not one of the rare cases where
an incomplete record warrants a new trial.65
Rights To Present a Defense and Confront Witnesses
Schneider next asserts that the trial court violated his Sixth Amendment
rights to confront witnesses and present a defense by excluding evidence that
J.S. reported that Elizabeth's ex-partner, John, abused her.
64 State v. Bartolome, 139 Wn. App. 518, 521, 161 P.3d 471 (2007) ("[A]ppellate courts defer to trial courts, even when they rule on stipulated records in cases that turn on credibility and 'where competing documentary evidence ha[s] to be weighed and conflicts resolved.'" (second alteration in original) (quoting In re Marriage of Redout. 150 Wn.2d 337, 351, 77 P.3d 1174 (2003)))). 65 See Tilton. 149 Wn.2d at 785. -24- No. 71822-3-1/25
The Sixth Amendment entitles defendants to "'a meaningful opportunity to
present a complete defense.'"66 But this does not give defendants a right to
present irrelevant evidence.67 Trial judges may exclude evidence they determine
is irrelevant so long as they do not abuse their discretion.68
The trial court did not abuse its discretion in excluding the evidence of
J.S.'s past reports of sexual abuse. And Schneider cannot circumvent proper
evidentiary rulings by arguing they violate his right to present a complete defense
and right of confrontation. Schneider advanced several theories of relevance for
this evidence, all going to J.S.'s credibility, the key factor in this case:
1. The evidence showed J.S. had reported the same type of abuse in
the past and that it had caused her mother to get rid of her lover,
John, that time. Schneider argued J.S. was accusing him for the
same purpose because he was about to get custody of her.
2. It showed J.S. had a basis for knowledge about sexual conduct
apart from Schneider raping her.
3. It would impeach J.S.'s credibility by showing a tendency to change
her story based on her mother's influence, not her actual memory.
66 Holmes v. South Carolina. 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (internal quotation marks omitted) (quoting Crane v. Kentucky. 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)); State v. Lynch. 178 Wn.2d 487, 491, 309 P.3d 482 (2013). 67 Jones. 168 Wn.2d at 720. 68 State v. Perez-Valdez. 172 Wn.2d 808, 814, 265 P.3d 853 (2011). -25- No. 71822-3-1/26
4. Since the State made J.S.'s credibility central in arguing for the
404(b) evidence to come in, Schneider should have a chance to
combat that argument.
5. Evidence of J.S.'s report about John provided "crucial context" for
part of Torr Lindberg's testimony.69
We reject Schneider's arguments. The trial court carefully considered
whether to admit the evidence. It considered allowing the evidence while giving
the jury a limiting instruction.70 It determined, however, that admitting the
evidence would require a minitrial to determine whether the abuse occurred and
how it was discovered. It found that the risk of unfair prejudice, confusion of the
issues, and misleading the jury substantially outweighed the evidence's probative
value. The trial court thus reached the reasonable conclusion that admitting
J.S.'s reports of abuse would result in a high risk of unfair prejudice and
confusing the jury, and it reasonably excluded the evidence under ER 403.
In addition, the evidence had only marginal probative value. As the State
points out, J.S. would almost certainly have known that reporting Schneider
raped her would prevent him from getting custody of her, whether or not she had
done the same with John in the past. The record contains no indication that J.S.,
at 16, would not have a basis for sexual knowledge apart from Schneider
69 That testimony was a note, "No abuse reported after that time." 70 See Perez-Valdez. 172 Wn.2d at 815. -26- No. 71822-3-1/27
assaulting her. Showing J.S. gained that knowledge from John's abuse would
have no probative value either. Schneider's theory that J.S.'s report of John's
abuse showed an "ability" to change her stories based on her mother's influence,
thus affecting her credibility, appears to be sheer conjecture. And neither party
introduced the note in Torr Lindberg's report that Schneider asserts this evidence
would provide "crucial context" for.
Because the trial court did not abuse its discretion in finding the evidence
was irrelevant, it did not deprive Schneider of a "meaningful opportunity to
present a complete defense" or his ability to confront witnesses.71
Exclusion of Evidence That J.S. Knew of A.S.'s Accusations
Annetta Spicer testified that when she asked J.S. in a 2010 interview if
Schneider abused her, J.S. said "nothing had ever happened" and "she had no
issues with [Schneider]."72 Schneider's counsel then asked if J.S. was "made
aware ... of the allegation of [A.S.]." The trial court excluded Spicer's response.
Schneider argues that the trial court abused its discretion in doing so.
Although Spicer told J.S. about A.S.'s allegations in 2010, the State repeatedly
pointed out that J.S. and A.S. did not know each other and argued that
similarities between their accounts bolstered J.S.'s credibility. Schneider
71 Holmes, 547 U.S. at 324 (internal quotation marks omitted) (quoting Crane. 476 U.S. at 690); see Jones. 168 Wn.2d at 720. 72 Spicer had no notes of the interview, which occurred four years before trial. -27- No. 71822-3-1/28
contends that evidence that Spicer told J.S. about A.S.'s allegations was relevant
to J.S.'s basis of knowledge and, thus, her credibility. He further contends this
was knowing use of false evidence or improper manipulation of material evidence
in violation of the Fourteenth Amendment.
This challenge lacks merit. Schneider does not contend that Spicer knew
any details of A.S.'s allegations against Schneider. Without that knowledge, the
evidence is not relevant: J.S. knowing the bare fact that another woman had
accused Schneider could not diminish her credibility in detailing the abuse she
suffered or the probativeness of the similarities between the girls' accounts.
Those similarities are what the State relied on in its closing arguments. The trial
court did not abuse its discretion or violate Schneider's constitutional rights in
excluding that evidence.
Schneider's claim that the State committed prosecutorial misconduct by
arguing contrary to facts it knew also lacks merit. Schneider does not contend
Spicer knew the details of A.S.'s allegations.73 The record supports the State's
argument that J.S. did not know the details of A.S.'s reported rapes. And
Schneider cites no authority indicating a closing argument can be "false
evidence." This court will not reverse for trial irregularities unless the misconduct
73 Spicer's knowledge of A.S.'s allegations appears to have come from trial exhibit 45, a petition for custody and parenting time. That exhibit is not part of the appellate record. -28- No. 71822-3-1/29
prejudiced the jury, denying the defendant a fair trial.74 No such misconduct
occurred here.
Trial Court's Imposition of Costs on Schneider
The trial court assessed Schneider $887 in court costs and $600 in
mandatory fines. The trial court imposed these costs under RCW 10.01.160,
which provides that the "court shall not order a defendant to pay costs unless the
defendant is or will be able to pay them."75 Schneider suffered a major head
injury while the case was pending. The court sentenced Schneider to 280
months to life in prison. The court later found Schneider indigent, authorizing the
preparation of trial transcripts at public expense for his appeal.
When a trial court imposes costs under RCW 10.01.160, "[t]he record
must reflect that the trial court made an individualized inquiry into the defendant's
current and future ability to pay."76
The State makes three arguments in support of the trial court's finding.
We reject each. First, the State contends that Schneider invited any error. The
"invited error" the State points to is Schneider's claim at sentencing that
Schneider was "a productive member of the community" and presentation of
evidence at a bail hearing that Schneider worked throughout his adult life.
74 State v. Davenport. 100 Wn.2d 757, 762, 675 P.2d 1213 (1984). 75 RCW 10.01.160(3). 76 State v. Blazina. 182 Wn.2d 827, 838, 344 P.3d 680 (2015). -29- No. 71822-3-1/30
Defense counsel's general comments about Schneider's work history cannot
reasonably be construed to "invite" a finding that Schneider had the present or
future ability to pay.
Second, the State points out that Schneider did not object to the court's
imposition of fees at the sentencing hearing. Division Two held this to bar such
an argument on appeal in State v. Blazina.77 But that court held the defendant
could not challenge for the first time on appeal a trial court's legal financial
obligations (LFOs) order that was allegedly based on unsupported findings.78
Here, the trial court made no findings.
Third, the State contends that the record supports the trial court's finding
that Schneider would be able to pay $887. It points again to defense counsel's
representation that Schneider was steadily employed, along with the fact
Schneider had retained counsel for an appeal, in arguing that the trial court
properly concluded that Schneider had the present or future ability to pay. The
record does not show that the court considered Schneider's ability to pay, as
RCW 10.01.160(3) requires. We conclude that the trial court exceeded its
statutory authority by imposing LFOs without "tak[ing] account of [Schneider's]
financial resources . . . and the nature of the burden that payment of costs will
77 174 Wn. App. 906, 911, 301 P.3d 492 (2013), remanded. 182 Wn.2d 827, 344 P.3d 680 (2015). 78 Blazina. 174 Wn. App. at 911. -30- No. 71822-3-1/31
impose."79 Because the trial court did not make the individualized findings RCW
10.01.160(3) requires and because the basis for its determination does not
otherwise appear in the record, we remand for a resentencing hearing on this
issue.
CONCLUSION
The record sufficiently supports each conviction and each challenged
evidence decision. Schneider's other arguments lack merit. But because the
trial court did not make an individualized inquiry into Schneider's ability to pay
costs, we reverse that part of his sentence imposing costs and remand for further
proceedings consistent with this opinion.
/jZA^K / WE CONCUR:
CtyiJ.
79 RCW 10.01.160(3). ^ cZo^ y,'y -31- \ -ti\