State of Washington v. Evan Walter Richardson, Jr.

Opinion

FILED AUGUST 4, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 40729-2-III Respondent, ) ) v. ) ) EVAN WALTER RICHARDSON, JR., ) UNPUBLISHED OPINION ) Appellant. )

HILL, J. — A jury convicted Evan Richardson of two counts of child molestation

in the first degree as to P.W. and two counts of child molestation in the first degree as to

K.F. The jury also found Richardson was in a position of trust to facilitate the

commission of these crimes. The trial court sentenced Richardson to an exceptional

upward sentence and imposed various community custody conditions.

On appeal, Richardson argues (1) the State presented insufficient evidence to

establish he was in a position of trust to facilitate the commission of child molestation as

to K.F., (2) the trial court abused its discretion in denying his motion to sever, (3) witness

misconduct violated his right to a fair trial, and (4) the community custody condition

requiring that he remain within geographic boundaries as set by his community custody

officer (CCO) should be struck as unconstitutionally vague.

We affirm Richardson’s convictions and sentence. No. 40729-2-III State v. Richardson

BACKGROUND

In March 2023, P.W. disclosed that her stepfather, Evan Richardson, had been

touching her inappropriately while they watched television. The Spokane Police

Department (SPD) and Child Protective Services opened an investigation.

During the investigation, SPD discovered that another victim, K.F., had made

similar allegations against Richardson in 2007 when K.F. was six years old. In that

matter, Lisa Powell and Katherine Buske, Powell’s daughter, ran a daycare out of their

residence next to K.F.’s maternal grandmother. Nicole Stonehouse, K.F.’s mother, would

leave K.F. in Powell’s and Buske’s care during the day while she was working.

Richardson, who was married to Buske and lived at the residence, would sometimes

watch K.F. when Powell and Buske were occupied or were in other rooms of the house.

Stonehouse was unaware that Richardson and K.F. were sometimes left alone together.

In May 2007, K.F. disclosed that Richardson was touching her inappropriately. SPD

eventually referred the matter to the State, which elected not to pursue charges at that

time.

In 2023, the State was in possession of both P.W.’s and K.F.’s allegations and

charged Richardson with two counts of child molestation in the first degree as to each

victim. The defense filed a motion to sever the offenses prior to trial. The court denied

the motion. At the close of trial, the jury returned a guilty verdict on all four counts and

2 No. 40729-2-III State v. Richardson

further found Richardson committed the aggravating factor of using a position of trust to

facilitate the commission of the crimes as to each victim.

The trial court sentenced Richardson to an exceptional sentence upward of 224

months to life. The court also imposed community custody conditions. Community

custody condition 8, which Richardson challenges on appeal, requires that he remain

within a geographic boundary as set forth in writing by his CCO.

ANALYSIS

Position of Trust

Richardson argues insufficient evidence shows he was in a position of trust as to

K.F. because the evidence established that (1) he was never paid by K.F.’s mother to

watch K.F. nor did K.F.’s mother agree to such an arrangement; (2) he would watch K.F.

only if Buske was not around; and (3) he was merely an occupant of the home.

Richardson further argues that no evidence reveals how long he knew K.F. or the nature

of their relationship.

This court reviews claims of insufficient evidence by asking “whether any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt when viewing the evidence in a light most favorable to the State.” State v. Treat,

109 Wn. App. 419, 426, 35 P.3d 1192 (2001). “‘In determining the sufficiency of the

evidence, circumstantial evidence is not to be considered any less reliable than direct

evidence.’” State v. Zghair, 4 Wn.3d 610, 620, 567 P.3d 1 (2025) (quoting State v.

3 No. 40729-2-III State v. Richardson

Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980)); State v. Jackson, 145 Wn. App.

814, 818, 187 P.3d 321 (2008). “A claim of insufficiency admits the truth of the State’s

evidence and all inferences that reasonably can be drawn therefrom.” State v. Salinas,

119 Wn.2d 192, 201, 829 P.2d 1068 (1992). “Unchallenged findings of fact are verities

on appeal.” State v. Veltri, 136 Wn. App. 818, 821, 150 P.3d 1178 (2007).

This court applies a two-part inquiry when analyzing the abuse of trust sentencing

aggravator outlined in RCW 9.94A.535(3)(n): (1) “whether the defendant was in a

position of trust,” and (2) “whether this position of trust was used to facilitate the

commission of the offense.” State v. Bedker, 74 Wn. App. 87, 95, 871 P.2d 673 (1994).

Richardson relies on State v. Stuhr, 58 Wn. App. 660, 794 P.2d 1297 (1990), to

support his argument that he was not in a position of trust as to K.F. In that case, Clark

Stuhr was a guest in the home of an 80-year-old man, whom he murdered. Id. at 662.

This court concluded that there was “absolutely nothing to show that Stuhr’s status as a

houseguest was used to facilitate his commission of [the] murder; rather, it merely placed

him in close proximity to his victim at a time when no one else was in the home.” Id. at

663. Further, there was “no evidence that Stuhr was acting as a caretaker for the victim

or had been left alone with him because the victim or his family reposed some particular

trust or confidence in Stuhr.” Id. Therefore, the aggravating factor was reversed. Id. at

663-64.

4 No. 40729-2-III State v. Richardson

The facts of the present case are distinguishable from Stuhr. While the record

does not contain any evidence establishing that Stonehouse specifically entrusted K.F. to

Richardson’s care, there is evidence that Buske and Powell occasionally entrusted

Richardson with K.F.’s care. As jury instruction 26, which is unchallenged on appeal,

informed the jury, there does not need to be a relationship of trust between the victim and

the defendant, and it is sufficient if there is a relationship of trust between the defendant

and someone who entrusted the victim to the defendant’s care. Further, Richardson’s

responsibilities for K.F., a six-year-old girl, allowed him to develop a relationship of trust

with the child.

We therefore conclude that sufficient evidence supports the aggravating factor as

to K.F.

Severance

Richardson argues that the court abused its discretion when it denied his motion to

sever the charges involving P.W. from those involving K.F. 1

“A trial court’s ruling on a motion for severance will be reversed only for manifest

abuse of discretion.” State v. Eastabrook, 58 Wn. App. 805, 811, 795 P.2d 151 (1990);

State v. Nation, 110 Wn. App. 651, 659, 41 P.3d 1204 (2002). “Where a trial court

1 He also contends that the court’s denial of the motion violated his right to a fair trial, but he does not elaborate on this argument or cite to any authority. We therefore decline to address this argument.

5 No. 40729-2-III State v. Richardson

abuses its discretion in denying a motion to sever, we reverse only if the defendant can

show that he or she was prejudiced by the decision.” State v. McCabe, 26 Wn. App. 2d

86, 95, 526 P.3d 891 (2023).

“The law does not favor separate trials.” State v. Medina, 112 Wn. App. 40, 52,

48 P.3d 1005 (2002). CrR 4.3 provides, in relevant part:

(a) Joinder of Offenses. Two or more offenses may be joined in one charging document, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (1) Are of the same or similar character, even if not part of a single scheme or plan; or (2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

(Emphasis omitted.) “Defendants seeking severance must not only establish that

prejudicial effects of joinder have been produced, but they must also demonstrate that a

joint trial would be so prejudicial as to outweigh concern for judicial economy.” State v.

Bythrow, 114 Wn.2d 713, 722, 790 P.2d 154 (1990). “In determining whether the

potential for prejudice requires severance, a trial court must consider (1) the strength of

the State’s evidence on each count; (2) the clarity of defenses as to each count; (3) court

instructions to the jury to consider each count separately; and (4) the admissibility of

evidence of the other charges even if not joined for trial.” State v. Russell, 125 Wn.2d 24,

63, 882 P.2d 747 (1994).

6 No. 40729-2-III State v. Richardson

Factor 1: Strength of Evidence

Richardson argues that factor 1 weighs against joinder because, although the trial

court determined the evidence was strong as to the counts related to P.W. (counts 1 and

2) and the counts related to K.F. (counts 3 and 4), the evidence supporting counts 1 and 2

is stronger than that which supports counts 3 and 4. Notably, Richardson does not argue

that the evidence supporting counts 3 and 4 is not strong, only that it differs from counts

1 and 2.

While the facts supporting each count are not identical, the distinctions Richardson

attempts to draw do not establish that the counts related to K.F. are weaker than those

related to P.W. Even the passage of time between the incidents is insignificant as K.F.

reported the abuse near the time it occurred. We therefore agree with the trial court that

similarly strong evidence supports each count.

Factor 2: Clarity of Defenses

Richardson argues that factor 2 weighs in favor of severance because, although

general denial was his defense to all counts, he may have offered selective testimony in

his own defense as to his established relationship with P.W. and would not have offered

similar testimony regarding K.F.

“The likelihood that joinder will cause a jury to be confused as to the accused’s

defenses is very small where the defense is identical on each charge.” Russell, 125

Wn.2d at 64. “A defendant’s desire to testify only on one count requires severance only

7 No. 40729-2-III State v. Richardson

if a defendant makes a ‘convincing showing that [they have] important testimony to give

concerning one count and a strong need to refrain from testifying about another.’” Id. at

65 (quoting State v. Watkins, 53 Wn. App. 264, 270, 766 P.2d 484 (1989)).

In Russell, the defendant similarly expressed that he might have wished to testify

as to only one count charged against him. Nevertheless, he failed to make an offer of

proof as to why selective testimony was necessary to avoid prejudice. The Washington

State Supreme Court did “not find the clarity of [Russell’s] defenses prejudiced by

joinder,” given his failure to make an offer of proof. Id. at 65-66.

Here, like the defendant in State v. Russell, Richardson indicated that he may

have wanted to testify against one of the victims, but not both. Yet Richardson did not

(1) make an offer of proof in his motion to the trial court as to which counts he sought to

offer testimony on, (2) make an offer of proof as to what he may say if he testified, or

(3) establish that prejudice would result from his decision to testify on certain counts and

not on others. Therefore, like in Russell, Richardson’s failure to make an offer of proof

precludes a determination on whether joinder affected his decision not to testify.

Factor 3: Jury Instructions

Richardson argues that factor 3 supports separate trials for K.F. and P.W. because,

despite the trial court informing the jury that it was to decide each count separately, the

jury was unlikely to be able to compartmentalize the evidence supporting each count.

8 No. 40729-2-III State v. Richardson

“Jurors are presumed to follow instructions.” State v. Grisby, 97 Wn.2d 493, 509,

647 P.2d 6 (1982). Here, the trial court gave the jury three separate instructions

informing them of the need to consider the crimes separately, the evidence supporting

each crime, and the sentencing aggravators. Jurors are presumed to follow jury

instructions and the instructions set forth above directed the jury to separately consider

the crimes, the evidence supporting each crime, and the sentencing aggravators.

Factor 4: Cross-admissibility of Evidence

Richardson argues the trial court did not properly analyze the cross-admissibility

of the evidence under ER 404(b) because it failed to address each step. He further argues

any probative value in admitting the evidence is outweighed by its prejudicial effect.

To determine the cross-admissibility of evidence under ER 404(b), the trial

court must (1) find the alleged misconduct occurred by a preponderance of the evidence;

(2) identify the purpose for admission; (3) determine whether the evidence is relevant to

prove an element of the crime; and (4) weigh the probative value against its prejudicial

effect. State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007).

The court explicitly found there was “enough information to establish a common

scheme or plan” due to Richardson’s role as a caregiver to both children, their similar

ages, the location where the abuse occurred (the living room), and the way in which the

abuse occurred. Verbatim Rep. of Proc. (VRP) (July 29, 2024) at 32. However, the court

did not make explicit findings as to the other factors. While the court’s oral ruling

9 No. 40729-2-III State v. Richardson

suggested it found the conduct occurred and the evidence would tend to prove the

elements of the crime, there is nothing in the record to suggest the court weighed the

probative value of the evidence against its prejudicial effect.

However, we conclude this error was harmless. The probative value of the

testimony is readily apparent as part of a common scheme or plan. The girls reported

similar abuse both as to the setting in which it occurred and the manner the abuse was

carried out. Their testimony went directly to the elements of the crimes and the

aggravating factors. Any prejudice was outweighed by the probative value to show a

common scheme or plan.

Conclusion

Having considered the four factors relevant to severance, the ultimate question

becomes whether Richardson was prejudiced by the court’s denial of his motion and

“whether a joint trial would be so prejudicial as to outweigh concern for judicial

economy.” Bythrow, 114 Wn.2d at 722. Based on the forgoing, we conclude all of the

factors weighed in favor of a joint trial, and the trial court did not abuse its discretion

when it denied Richardson’s motion to sever.

Witness Misconduct

Richardson argues one of the State’s witnesses, Detective Brad Humphrey,

committed witness misconduct by twice referencing “an uncharged crime of rape.”

Appellant’s Opening Br. at 43. He argues these statements were improper opinions on

10 No. 40729-2-III State v. Richardson

Richardson’s guilt “and this trial irregularity deprived Richardson of his right to a fair

trial.” Appellant’s Opening Br. at 41.

“The general rule is that no witness, lay or expert, may ‘testify to his opinion as to

the guilt of a defendant, whether by direct statement or inference.’” City of Seattle v.

Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993) (quoting State v. Black, 109 Wn.2d

336, 348, 745 P.2d 12 (1987)). Similarly,

[w]hether testimony constitutes an impermissible opinion on guilt or a permissible opinion embracing an “ultimate issue” will generally depend on the specific circumstances of each case, including the type of witness involved, the specific nature of the testimony, the nature of the charges, the type of defense, and the other evidence before the trier of fact.

Id. at 579.

Richardson challenges the following statements offered by Detective Humphrey

during trial:

[THE STATE:] Well, what—how fruitful, I suppose, is DNA in a— in a situation where the victim lives in the same home as the perpetrator?

[DETECTIVE HUMPHREY:] In this particular investigation, it was not going to be—it was not going to be fruitful.

[THE STATE:] Why’s that?

[DETECTIVE HUMPHREY:] So [P.W.]’s allegations of sexual abuse and then her disclosure during the forensic interview indicated that there was penetration of her vagina from Mr. Richardson’s—

....

[THE STATE:] Once you were able to finish up the investigation, what did you do?

11 No. 40729-2-III State v. Richardson

DETECTIVE [HUMPHREY:] I forwarded charges for rape of a child first and child molestation.

VRP (Aug. 5, 2024) at 920, 929 (emphasis added to challenged statements).

In making the first challenged comment, Detective Humphrey said there were

indications that Richardson penetrated P.W.’s vagina based on P.W.’s disclosures and

forensic interview. He did not express an opinion on the truth of the disclosure; he

simply relayed his understanding of what P.W. said.

Detective Humphrey made the second challenged statement to explain the

progression of his investigation. Stating the fact that Richardson was charged with rape

in the first degree and child molestation does not amount to an expression of an opinion

as to whether Richardson was guilty of those charges. Therefore, the challenged

statements do not amount to improper opinions on Richardson’s guilt and do not violate

the related motion in limine.

Turning to whether a trial irregularity occurred, this court considers “‘(1) the

seriousness of the irregularity; (2) whether the statement was cumulative of evidence

properly admitted; and (3) whether the irregularity could be cured by an instruction.’”

State v. Perez-Valdez, 172 Wn.2d 808, 818, 265 P.3d 853 (2011) (quoting State v. Post,

118 Wn.2d 596, 620, 826 P.2d 172, 837 P.2d 599 (1992)). “The appropriate inquiry is

whether the testimony, when viewed against the backdrop of all the evidence, so tainted

the trial that [the defendant] did not receive a fair trial.” Post, 118 Wn.2d at 620.

12 No. 40729-2-III State v. Richardson

Here, the admissible evidence showed Richardson touched each girl’s vagina as he

sat with them on the couch. Humphrey’s single mention of penetration and a reference to

a charge of rape would not, when viewed against the backdrop of all the evidence, unduly

taint the trial. This is particularly true in this case where the defense attorney objected

after each of Detective Humphrey’s statements, the court sustained the objections, and

the trial court issued a curative jury instruction prior to deliberations to “disregard any

comments or statements by Detective Humphreys in regard to penetration or rape. So

please don’t consider any of that testimony.” VRP (Aug. 5, 2024) at 972.

Because the jury is presumed to follow the jury instructions, this court may

presume the jury did not consider Detective Humphrey’s statements as they were ruled

inadmissible. We conclude, in light of all the evidence, the improper testimony was not

so prejudicial to suggest Richardson did not receive a fair trial.

Community Custody Conditions

Richardson argues that the community custody condition requiring that he

remain within a geographic boundary set by his CCO is unconstitutionally vague. He

argues that the condition (1) requires that he remain within geographic boundaries

without providing any guidance or clarification as to the extent of those boundaries and

(2) grants the CCO unrestricted discretion in setting the geographic boundaries.

This court reviews a sentencing court’s decision to impose a certain community

custody condition for an abuse of discretion and will reverse only if the imposition of the

13 No. 40729-2-III State v. Richardson

condition was manifestly unreasonable. State v. Geyer, 19 Wn. App. 2d 321, 326, 496

P.3d 322 (2021); State v. Peters, 10 Wn. App. 2d 574, 583, 455 P.3d 141 (2019). “The

imposition of an unconstitutional condition is manifestly unreasonable.” Peters, 10 Wn.

App. 2d at 583. For purposes of analyzing the instant issue,

a community custody condition, is unconstitutionally vague if (1) it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.

State v. Padilla, 190 Wn.2d 672, 677, 416 P.3d 712 (2018).

Richardson challenges the mandatory community custody condition 8 as being

unconstitutionally vague. The condition requires that he “[r]emain within [a] geographic

boundary, as set forth in writing by the Community Corrections Officer.” Clerk’s Papers

at 310. This court recently addressed this exact issue in State v. Lundstrom, 34 Wn. App.

2d 977, 572 P.3d 1243 (2025). We held that the condition was not unconstitutionally

vague, reasoning,

the court complied with its statutory obligation to order Lundstrom to follow certain conditions that the legislature has authorized the CCO to impose. See RCW 9.94A.703(1)(b). And one of the conditions the legislature has determined a CCO must impose on an offender is an order to “[r]emain within prescribed geographical boundaries.” RCW 9.94A.704(3)(b).

Id. at 983.

Like Lundstrom, we conclude the community custody condition restricting

Richardson to a geographical boundary set by his CCO is not unconstitutionally vague.

14 No. 40729-2-III State v. Richardson

CONCLUSION

We affirm Richardson’s convictions, aggravating factors, and sentence.

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.

Hill, J.

WE CONCUR:

Staab, C.J.

Cooney, J.

15 Tristen L. Worthen The Court of Appeals 500 N. Cedar St. Clerk/Administrator of the Spokane, WA 99201-1905

(509) 456-3082 State of Washington Fax (509) 456-4288 TDD #1-800-833-6388 Division III http://www.courts.wa.gov/courts

August 4, 2026 E-Mail: E-Mail: Laura Michelle Chuang Benjamin Nickol Northwest Appellate Law, PLLC Spokane County Prosecuting Attorney’s Office PO Box 8679 1100 W Mallon Ave Spokane, WA 99203-0679 Spokane, WA 99260-0270 laura@nwappellatelaw.com bnickol@spokanecounty.gov scaappeals@spokanecounty.org

CASE # 407292 State of Washington v. Evan Walter Richardson, Jr. SPOKANE COUNTY SUPERIOR COURT No. 2311047632

Counsel:

Enclosed please find a copy of the opinion filed by the court today.

A party need not file a motion for reconsideration as a prerequisite to discretionary review of this decision by the Washington Supreme Court. RAP 13.3(b), 13.4(a). If a motion for reconsideration is filed, it should state with particularity the points of law or fact that the moving party contends this court has overlooked or misapprehended, together with a brief argument on the points raised. RAP 12.4(c). Motions for reconsideration that merely reargue the case should not be filed.

Motions for reconsideration, if any, must be filed within twenty (20) days after the filing of a decision. RAP 12.4(b). If no motion for reconsideration is filed, any petition for review to the Supreme Court must be filed in this court within thirty (30) days after the filing of the decision. RAP 13.4(a). The motion for reconsideration and petition for review must be received by this court on or before the dates each is due. RAP 18.5(c).

Sincerely,

Tristen Worthen Clerk/Administrator

TLW: hcm E-Mail: Honorable Jacquelyn M. High-Edward Mailed: Evan W. Richardson C/O Coyote Ridge Corrections Center