IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 82125-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JOHN RAY STEARNS,
Appellant.
HAZELRIGG, A.C.J. — After remand from the Supreme Court, this court
considers additional issues presented in John Ray Stearns’ appeal from his
conviction for felony murder in the first degree, predicated on rape in the first and
second degrees, with a special allegation of sexual motivation. He asserts that the
trial court abused its discretion when it admitted improper propensity evidence in
violation of ER 404(b). Stearns also alleges that prosecutorial misconduct and
irregularities in the issuance of the court’s instructions to the jury require reversal.
Because the trial court erred when it admitted evidence of other acts under ER
404(b), we reverse.
FACTS
The facts of Stearns’ case were set out as follows in the opinion that issued
in his previous appeal to this court:
In January 1998, city park employees discovered Crystal Williams’s body outside the bathrooms in Dr. Blanche Lavizzo Park in Seattle’s Central District. Seattle Police Department (SPD) No. 82125-3-I/2
officers retrieved a used condom from the ground near Williams’s body and the Washington State Patrol Crime Laboratory [(WSP Crime Lab)] later determined it contained semen from the same source as the vaginal swab collected from Williams during her autopsy. At the time the biological samples were gathered and first examined, the DNA profile did not match anyone in the Combined DNA Index System (CODIS) and the police investigation continued. SPD detectives determined that on the morning of the murder, several women saw Williams in the hours before her death. Many of these women, like Williams, engaged in sex work to support their drug use, either trading sex for drugs directly or for cash to purchase them. Williams commonly spent time with this group of women in and around Lavizzo Park, where they often took their “dates” to the bathrooms to conduct their business. From this group, SPD detectives interviewed [five different women, including] Williams’s half-sister. Several of the women were consistent in their statements that they last saw Williams walking away from where the group congregated near a corner store in the early morning hours and that she was heading toward the park with a man. Detectives conducted these eyewitness interviews early in the investigation and, based on the resulting information, soon arrested and interviewed Jimmy Horner as a suspect. At the time of Horner’s arrest, he matched multiple key aspects of the descriptions given by the women about the man last seen with Williams. [One of Williams’ colleagues from the park who had been interviewed by SPD] also picked Horner out of a police photomontage. However, the police ceased their investigation into Horner after the WSP[ Crime Lab] determined his DNA did not match the recovered semen samples. Police also interviewed a number of other suspects but, eventually, the case went cold. In 2004, the WSP [Crime Lab] notified SPD of a CODIS match to the Williams DNA samples. As a result, detectives interviewed Stearns in prison in March 2005. He was serving a 720-month prison sentence on an unrelated matter. During the interview, Stearns denied having sex with Williams or otherwise knowing her. Jeffery Baird, the deputy prosecuting attorney (DPA) handling the Williams case, later concluded that probable cause existed to charge Stearns for her murder at that time; however, he did not actually file charges until 2017. The record reflects that no meaningful investigation occurred after 2005. On August 10, 2017, the State charged Stearns with one count of felony murder in the first degree with a special allegation that he committed the crime with sexual motivation.
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State v. Stearns, 23 Wn. App. 2d 580, 582-84, 517 P.3d 467 (2022) (Stearns I)
(footnote omitted), reversed, 2 Wn.3d 869, 545 P.3d 320 (2024). The State
specifically asserted that Stearns committed the murder of Williams while
committing or attempting to commit, and in furtherance or flight from rape in the
first degree and rape in the second degree.
Stearns engaged in extensive pretrial litigation, including a motion to
dismiss for improper preaccusatorial delay and, in response to a State motion to
admit evidence under ER 404(b), to exclude evidence of other acts. The motion
to dismiss was denied. Of the three offered and challenged, the State was
permitted to introduce evidence of two prior sexual assaults for which Stearns had
been convicted. Stearns proceeded to trial in January 2020, but the judge declared
a mistrial after the jury could not reach a unanimous verdict. The State retried
Stearns in November 2020.
The witnesses [in the retrial] were largely the same as the first trial and primarily consisted of numerous law enforcement officers who had worked on the case; some had since retired and others were still with SPD. A number of expert witnesses testified about the DNA evidence that officers collected, its processing, the CODIS match, and the significance of the condition and location of the samples. Horner also testified briefly, as did two of the women who had seen Williams on the morning of her murder . . . . At the time of trial in 2020, three of the women who told police in 1998 that they were with Williams on the morning of her murder were deceased. Of those three unavailable witnesses, two of them indicated to police in 1998 that they recalled seeing Williams leaving the corner store with a man and provided a description of him. The jury found Stearns guilty as charged and the trial court sentenced him as a persistent offender to life in prison without the possibility of release.
Stearns I, 23 Wn. App. 2d at 584. This court reversed and remanded for dismissal
with prejudice, holding that a 12-year delay in prosecution violated Stearns’ right
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to due process because several key witnesses had passed away by the time of
trial, which prejudiced him. Id. at 594-95. Because that issue was independently
dispositive, we did not decide Stearns’ other assignments of error. Id. at 585.
Our Supreme Court granted the State’s petition for review and considered
solely the issue of preaccusatorial delay. State v. Stearns, 2 Wn.3d 869, 545 P.3d
320 (2024) (Stearns II). It held that Stearns had suffered actual prejudice, but that
the State was merely negligent in its charging delay, a lower standard than
intentional delay. Id. at 881, 883-84. Under that standard, the Supreme Court held
that Stearns had failed to show actual prejudice such that “prosecution would
violate ‘fundamental conceptions of justice.’” Id. at 883 (internal quotation marks
omitted) (quoting State v. Oppelt, 172 Wn.2d 285, 289, 257 P.3d 653 (2011)). It
reversed and remanded for this court to consider Stearns’ other assignments of
error. Id. at 886.
ANALYSIS
I. Admission of Other Acts under ER 404(b)
Stearns challenges the admission of evidence of his past convictions for
rape in the second degree in 1981 and for rape in the second degree and robbery
in the first degree in 1989. The trial court admitted testimony from the victims and
documentation of the convictions under ER 404(b) as evidence of a plan, to prove
an element of the crime charged in the case involving Williams, and to rebut the
defense of consent.
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A. Other Crimes, Wrongs, or Acts
ER 404(b) allows for admission of “other crimes, wrongs, or acts” that would
normally “not [be] admissible to prove the character of a person in order to show
action in conformity therewith.” The acts “may, however, be admissible for other
purposes, such as proof of . . . [a] plan.” ER 404(b). “ER 404(b) prohibits evidence
of other crimes to show that the defendant acted in conformity with that character—
i.e., had a propensity to commit this crime.” State v. Williams, 156 Wn. App. 482,
490, 234 P.3d 1174 (2010).
This court reviews questions of law, such as the interpretation of evidentiary
rules, de novo. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). If
the trial court has interpreted the rule correctly, we then review the admissibility
ruling for abuse of discretion. Id. The trial court has abused its discretion if its
decision “is manifestly unreasonable or exercised on untenable grounds or for
untenable reasons.” State v. Hudson, 150 Wn. App. 646, 652, 208 P.3d 1236
(2009).
“Washington courts have developed a thorough analytical structure for the
admission of evidence of a person’s prior crimes, wrongs, or acts.” State v.
Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012).
To admit evidence of a person’s prior misconduct, “the 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 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.”
Id. (quoting State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)); see
also State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).
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There are two instances in which evidence is admissible to prove a common scheme or plan: (1) “where several crimes constitute constituent parts of a plan in which each crime is but a piece of the larger plan” and (2) where “an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes.”
Gresham, 173 Wn.2d at 421 (quoting Lough, 125 Wn.2d at 854-55). “[T]he
requirement [is] that ‘the defendant committed markedly similar acts of misconduct
against similar victims under similar circumstances.’” State v. DeVincentis, 150
Wn.2d 11, 19, 74 P.3d 119 (2003) (internal quotation marks omitted) (quoting
Lough, 125 Wn.2d at 856). “[A]n intelligent weighing of potential prejudice against
probative value is particularly important in sex cases, where the prejudice potential
of prior acts is at its highest.” State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697
(1982); see also State v. Gogo, 29 Wn. App. 2d 107, 117, 540 P.3d 150 (2023).
Here, the State argued that Stearns has a history of striking victims on the
head, strangling them to prevent resistance, and then raping them, and that
Williams had also been a victim of this common plan. In 1982, Stearns was
convicted of rape in the second degree after entry of an Alford 1 plea based on an
incident that had occurred with victim B.G. the previous year (B.G. conviction). In
1989, Stearns was found guilty of attempted rape in the second degree and
robbery in the first degree after trial. The victim in that case was D.H. (D.H.
conviction). Finally, in 2000 Stearns pleaded guilty to assault in the third degree,
burglary in the second degree, and theft in the first degree after an incident from
the previous year that involved victim Y.C. (Y.C. conviction).
1 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
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B. Pretrial Litigation and Ruling on Admissibility
Prior to the start of Stearns’ first trial for Williams’ murder, the State sought
admission of certain of Stearns’ past convictions and proffered testimonial and
documentary evidence related to all three of these cases. The DPA characterized
this evidence as “prior specific acts of the defendant as evidence that the
defendant raped and murdered Crystal Williams as part of a commonly used plan
to violently assault women in the head with blunt force as part of committing a
rape.” In fact, during the twelve-year delay between the development of probable
cause to charge Stearns for Williams’ murder and the actual filing of the instant
case, the DPA originally assigned to the case, Baird, had consulted with the
appellate unit of the prosecutor’s office to determine whether this criminal history
would be admissible in the trial on Williams’ murder. The State denied that this
was impermissible propensity evidence and instead asserted that it was “to show
how [Stearns] had a well-defined design to violently, and sexually, assault women,”
that Stearns had acted under such a plan in the past, and utilized it again as to
Williams. The DPA asserted that the evidence of the prior convictions was also
offered to prove the elements of forcible compulsion and was, therefore, necessary
to prove the predicate offenses underlying the murder charge. Finally, the State
averred that the evidence was needed “to rebut any potential defense claim that
the sexual encounter with Crystal Williams was consensual.” The State’s motion
relied on a variety of documents: Stearns’ plea and judgment and sentence (J&S)
from the B.G. conviction, as well as B.G.’s statement to police following the
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incident, the certificate of probable cause (PC) and J&S from the D.H. conviction,
and the information, PC certificate, bail request, and J&S from the Y.C. conviction.
Stearns filed a written objection to the admission of the other act evidence
and argued that the risk of unfair prejudice was particularly high given the nature
of the convictions and these acts could not be considered a plan because they
lacked sufficiently “complex” similarities, as required by case law. He averred
admission of other act evidence based on otherwise “superficial” similarities would
essentially “swallow the rule” prohibiting admission of propensity evidence.
Stearns contended that any similarities between the past incidents and the
circumstances of Williams’ death were too generic and the State had ignored
several dissimilarities, which weighed against demonstration of a plan and instead
could only establish propensity.
The State responded that Stearns was attempting to raise the legal
standard for admission under ER 404(b) by arguing that complex similarities were
required. The State claimed all that was required under case law was “substantial
similarity.” Stearns countered with a line of cases he asserted indicate that “[p]rior
bad acts involving sex offenses are particularly prejudicial” and “[t]he danger is that
the defendant will be found guilty not on the strength of the evidence supporting
the current charge, but because of the jury’s overreliance on past acts as evidence
of his character and propensities.” See State v. Sutherby, 165 Wn.2d 870, 886,
204 P.3d 916 (2009); State v. Coe, 101 Wn.2d 772, 780-81, 684 P.2d 668 (1984);
State v. Slocum, 183 Wn. App. 438, 442, 333 P.3d 541 (2014). He also refuted
the assertion that the past cases were as similar to the circumstances of Williams’
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death as the State claimed and highlighted the critical factual differences. Stearns
further noted that the case law requires evidence that suggests actual planning,
not just acts that were comparable.
The court ultimately admitted evidence of Stearns’ convictions stemming
from the 1981 and 1989 crimes against B.G. and D.H., respectively, but declined
to admit anything related to the 1999 offense against Y.C. As to the two earlier
convictions, the court ruled that the underlying facts were supported by a
preponderance of evidence based on the documentation the State provided, the
other acts evidence showed a common scheme or plan, and it was relevant “to
prove an element of the crime.” In addressing the latter point, the third step of the
assessment under ER 404(b), the trial court held that the element the State sought
to prove was forcible compulsion in the rape allegations underlying the felony
murder charge. The trial court determined this last aspect of the analysis carried
“a dual purpose . . . It also rebuts . . . the defense of consent.” The judge noted
that this was “critical” to the court’s ruling.
The fourth step of the admissibility analysis requires weighing the probative
value against the prejudicial effect. Noting that “there is absolutely a prejudicial
effect here,” the judge said she would have been reluctant to admit the past
incidents in the absence of a defense of consent. The court reasoned that, in light
of the consent defense, the other act evidence had significant probative value. The
ruling was intended to allow the State to refute claims from the defense that any
sexual contact that occurred between Williams and Stearns prior to her death was
consensual. Rebutting this claim was key to the State’s case as the felony murder
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charge rested on a theory that Stearns murdered Williams during the course of
raping her “and in furtherance of said crime and in the immediate flight therefrom,
and with premeditated intent to cause the death of another person.” The court
concluded, “I think it’s clear that the probative value in the 1981 case [involving
B.G.], and in the 1989 case [with D.H.] far outweigh the prejudicial effect assuming
there will be a limiting instruction given to the jury,” and found that the B.G. and
D.H. convictions did constitute a common plan or scheme because the methods
Stearns used to subdue the women was similar; blows to the head and
strangulation, followed with “vaginal or attempted vaginal assaults,” and evidence
of robbery. In passing, the court also noted the evidence was probative of
opportunity and access; the other acts had occurred in the same neighborhood as
Williams’ murder and Stearns had been living in that neighborhood on and off at
the time of all the incidents.
C. Trial Court Misapplied the Law
The trial court’s interpretation of the case law on ER 404(b) evidence of a
common scheme or plan was erroneous as the B.G. and D.H. convictions lack
sufficient similarities to Williams’ murder. The record suggests both a misguided
analysis of how these broad resemblances demonstrate a common scheme or
plan and improper considerations as to prejudice.
“Over the last 20 years, the Washington Supreme Court has unquestionably
enlarged the evidence of a defendant’s prior bad acts that may be admitted as
proof of a plan for committing crime sufficiently similar to the crime presently
charged to justify admission under ER 404(b).” Slocum, 183 Wn. App. at 449.
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While the State sought to admit evidence of three of Stearns’ prior convictions, the
court excluded one of them and the State does not appeal that ruling. Accordingly,
we analyze only the evidence of the B.G. and D.H. convictions that was presented
to the jury in the trial for Williams’ murder.
In support of its motion to admit evidence of the B.G. conviction, the State
offered the Alford plea Stearns entered in that case and B.G.’s statement that she
and the SPD officer who took her report both signed. B.G., a White woman who
was 20 years old at the time of the assault, told the officer that Stearns had initially
gained entry into her apartment around midnight by telling her that “someone was
after him” and asking for shelter. B.G. explained that she allowed Stearns inside
because she knew him through her brother. Shortly after, he struck her over the
head with a whiskey bottle he had brought with him. After a struggle, he choked
B.G. until she stopped resisting and then vaginally raped her three times. Stearns
left the apartment and then returned briefly before again departing, after which
B.G. noticed that he had taken her TV. B.G. later testified to these same events
at the trial in the instant case.
As to the D.H. conviction, the State offered the information and PC
certificate filed by the prosecution to initiate the case, as well as the J&S entered
after trial. D.H., a White woman, was 41 years old at the time of the assault. The
PC certificate, prepared and offered under penalty of perjury by Baird, the same
DPA who filed the charge on Williams’ murder, stated that D.H. passed Stearns,
who was laying in the gutter, as she walked home from work at around 5 p.m. After
she had attempted to avoid him by walking in the middle of the street, Stearns ran
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up behind her, grabbed her by the hair, and hit her in the face. 2 Stearns forced
D.H. to her knees, seized her by the throat, struggled with her in the street, and
attempted to insert his fingers into her vagina. At one point, Stearns waved a
passing car to go around them and told the driver that D.H. was his fiancée. After
he wrestled D.H. to the sidewalk, Stearns attempted to force her to a nearby park,3
but the attack was interrupted by Stearns’ brother. When Stearns was later
arrested, some of D.H.’s property was found in his possession, assumed to have
been taken from her during the struggle. Like B.G., D.H. testified to these facts at
trial in the Williams case. These documents, and the proffered testimony of B.G.
and D.H., easily satisfy the State’s burden at the first step of the ER 404(b) analysis
to establish by a preponderance that the other acts occurred. Once that threshold
showing is made, the court must consider the purpose for which the evidence was
offered, whether it was relevant to prove an element of the charged crime, and if it
is ultimately more prejudicial than probative. Gresham, 173 Wn.2d at 421.
There are two general categories of ER 404(b) cases relied on by the
parties: sexual violence against adults and sexual assault of children, 4 both of
2 No weapon is described in the record. 3 In his opposition to the State’s motion to admit this evidence, Stearns asserts that this
was not Lavizzo Park where Williams was found. While the assertion that Stearns proceeded with D.H. “toward a nearby park” is set out in the PC certificate in that case, his intended destination on that date was never established as the assault was interrupted. 4 The child sex offense cases offered in briefing are sufficiently factually distinct as to be
inapposite here. The victims in those cases obviously fell within a specific age range and there was usually some prior relationship between the perpetrator and the victim, whether within the family, or as a neighbor or family friend. Gresham, 173 Wn.2d at 413 (victims included perpetrators’ granddaughters, nieces, and children of close friends); Slocum, 183 Wn. App at 444, 445 (victims included a step-granddaughter, stepdaughter, and daughter-in-law). Further, this line of cases all involved grooming conduct, which is markedly different than the acts alleged here. As such, any analogies are tenuous. For example, in cases addressing grooming of a victim, the overall duration of the plan and associated crimes is generally longer, as the perpetrator prepared the victims for abuse over weeks or months and the abuse sometimes lasted for years. See DeVincentis, 150 Wn.2d at 13 (victim was groomed for several months);
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which seem to favor Stearns’ position that the admitted “evidence of prior sexual
assaults . . . were not markedly similar to the crime charged.” The latter type of
cases offered in briefing, child sex offenses, are sufficiently factually distinct as to
be inapposite here, thus, we do not consider them further on this question. 5
However, the cases involving sexual violence against adults are more factually
similar to Stearns’ past activities and those alleged in this case, though they show
a greater degree of specificity than the plan the State attributed to Stearns. As
Stearns noted in his opening brief, “The plan need not be complex, but the prior
acts must show that ‘an individual devises a plan and uses it repeatedly’” (quoting
Lough, 125 Wn.2d at 855).
In State v. Lough, the defendant challenged the ER 404(b) admission of
victim testimony that he “had previously drugged and raped four other women,
while in relationships with them.” 125 Wn.2d at 851-52. Our Supreme Court held
that admission was proper, in part because it was “admitted to show that he
committed the charged offense pursuant to the same design he used in committing
the other four acts of misconduct.” Id. at 861. The specific facts of the case made
admission of Lough’s “prior conduct particularly necessary.” Id. at 863. Lough’s
chosen method rendered the victims “unconscious or unable to clearly remember
everything that happened, the evidence of many prior similar episodes to prove a
Slocum 183 Wn. App. at 443 (abuse occurred over ten years); State v. Gantt, 29 Wn. App. 2d 427, 449, 540 P.3d 845 (abuse of defendant’s daughters lasted several years, beginning with touching over victims’ clothes in shared bed and escalating to penetration), review denied, 3 Wn.3d 1002 (2024). The plans in these cases increased in intensity over time and were intended to break down the inhibition of victims and isolate them. See Slocum, 183 Wn. App. at 443 (efforts taken to isolate past victim and over time break down inhibitions were identical to present victim); State v. Kennealy, 151 Wn. App. 861, 870-74, 214 P.3d 200 (2009) (victims first invited to apartment for popsicles and abused on later visits). 5 See DeVincentis, 150 Wn.2d 11; Slocum, 183 Wn. App. 438; Gresham, 173 Wn.2d 405.
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plan was necessary and probative of the facts of the charged crime.” Id. at 864.
Lough’s past acts not only had several clear parallels to his then-pending offense,
but the nature of the past acts themselves also made their admission vital to prove
the charges.
State v. Williams addressed a defense challenge to victim testimony related
to a prior conviction for rape that was admitted pursuant to ER 404(b). 156 Wn.
App. at 491. Notably, the testimony about the past rape was “relevant to the
element of forcible compulsion” and to rebut the consent defense raised by the
defendant, the same defense raised by Stearns here. Id. On appeal, the
evidentiary ruling was upheld because “the admission was relevant and
appropriate” in light of that defense. Id. The court held that the past rape
conviction evidenced a plan to target similar victims, female drug users of a
comparable age, “and a similar method of attack.” Id. Williams promised the
victims drugs, attacked them from behind, strangled them by placing his forearm
across their throat, and ultimately each victim was “strangled into unconsciousness
during the rape.” Id. Williams is closest to the facts presented here, but shows a
greater degree of specificity than is present in Stearns’ case.
The State offers State v. Yates; however, this case does not directly analyze
admissibility of other act evidence under ER 404(b), but rather the sufficiency of a
jury instruction that defined “common scheme or plan.” 161 Wn.2d 714, 753, 168
P.3d 359 (2007), abrogated on other grounds by State v. Gregory, 192 Wn.2d 1,
427 P.3d 621 (2018). As such, it is of limited utility here. However, the challenged
instruction in Yates “relied on the two alternative definitions of ‘common scheme
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or plan’ that this court embraced in [Lough] for purposes of defining ‘common
scheme or plan’ under ER 404(b).” Id. at 750. The trial court in Yates properly
admitted evidence relating to past murders to prove that the two charged murders
were part of a common scheme or plan. Id. at 753. Yates lured “white or light-
skinned” sex workers into his vehicle and “kill[ed] them by shooting them in the
head with a small caliber handgun.” Id. He would “encas[e] their heads in plastic
bags to ensure their deaths” and to try to contain their blood. Id. Yates then
stripped them to find any hidden money and “transport[ed] them to dump sites in
secluded areas.” Id. Our Supreme Court held that “‘any rational trier of fact could
have found” that the charged murders “were ‘part of a common scheme or plan’”
based on the similarities between past murders and the charged offenses. Id.
(quoting State v. Brown, 132 Wn.2d 529, 607, 940 P.2d 546 (1997)). There were
clear “profiles” of the victims in both Williams and Yates and the crimes featured
distinctive acts or signatures, such that a clear pattern or plan emerged.
At oral argument before this court, the parties also disputed the import of
State v. Brown. There, the Supreme Court held that the trial court did not err when
it admitted evidence of Brown’s prior sexual assault of S.S. as res gestae and
because it was “probative of [Brown’s] motive, intent, preparation and plan to
kidnap, rob, and murder” H.W., the named victim in the case then before the court.
Brown, 132 Wn.2d at 573. The evidence also rebutted Brown’s defense that the
sexual contact with H.W. before her death was consensual. Id. at 574. S.S. and
H.W. had been assaulted in a “markedly similar manner,” both “bound with the
same pair of handcuffs, gagged, and had their pubic hair shaved” prior to each
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rape. Id. These facts “made it more probable” that any sexual contact between
Brown and the murdered woman “was by forcible compulsion, and less probable
it was consensual.” Id.
1. Common Scheme or Plan
With this jurisprudence in mind, we turn to the trial court’s ruling that
evidence of the B.G. and D.H. convictions established a common scheme or plan
such that it was admissible in the trial on Williams’ murder. The defense opposition
to the ER 404(b) motion noted that the three “prior bad acts” the State sought to
introduce at trial “spann[ed] a period of 20 years,” with Williams’ death occurring
at the end of that timeframe. 6 Stearns emphasized that there was no common
underlying relationship between him and the victims: B.G. was a younger White
woman known to him who testified at trial that she had rebuffed advances from
him prior to the assault in 1981, D.H. was a middle-aged stranger, and there was
no evidence of any history between Stearns and Williams, a Black woman who
was 33 years old when she was killed, apart from the evidence of recent sexual
contact. Stearns approached each of the women in different ways; he gained
entrance to B.G.’s apartment by relying on a ruse and their familiarity through her
brother, he surprised D.H. on the street with a sudden attack, and he is speculated
to have approached Williams either for her services or by an assault. Each of the
incidents occurred at different times of the day and in different locations; B.G.’s
6 This window of time included the 1999 incident that was excluded by the trial court and,
therefore, it is not part of the analysis here. However, given that Williams’ death occurred in 1998, the timeframe is still roughly the same.
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assault occurred at her residence in the middle of the night, D.H.’s openly in the
street in the evening, and Williams’ in a public park, likely in the early morning.
The B.G. and D.H. cases are sufficiently distinct from each other, and from
the facts of the case involving Williams, such that they exceed the scope of
common scheme or plan as established by case law. In Lough, Yates, and
Williams, each defendant’s initial contact with the various victims showed much
greater consistency. Lough’s victims had all been involved in dating relationships
with him when he drugged and raped them. Lough, 125 Wn.2d at 849-52. Yates’
victims were all White or light-skinned sex workers who he lured into his vehicle.
Yates, 161 Wn.2d at 753. Finally, Division Three of this court described Williams’
victims as “women of a similar age, involved with drugs” who were attacked from
behind after Williams promised them drugs. Williams, 156 Wn. App. at 491. The
victims associated with Stearns are of different ages and races with lifestyles
significantly dissimilar from each other. B.G. was 20 years old, White, and
unemployed. D.H. was 41 years old, White, and worked downtown at an insurance
company. Williams was Black, 33 years old, and a sex worker. Further, none of
the women associated with Stearns in these cases were approached in the same
way as any other and their respective relationships with Stearns were markedly
distinct. B.G. knew Stearns, who was 19 years old at the time of the attack, through
her brother and testified that she had rejected Stearns’ advances in the past. D.H.
was a stranger and over a decade older than Stearns when he assaulted her. The
record is silent on any possible prior relationship between Stearns and Williams
other than a sexual encounter shortly before her death.
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The State has repeatedly emphasized in the trial court and on appeal that
Stearns used a “similar approach” with B.G., D.H., and Williams and emphasized
his assaultive conduct. At oral argument before this court, the State clarified that
it used the term “approach,” to refer to the fact that he struck the women by
surprise. 7 The tragic reality, however, is that many sexual assaults involve striking,
restraining, and choking the victim. 8 Indeed, several of the cases cited as authority
by the parties here detail the striking and choking of the various victims of
defendants Williams, Yates, Brown and Lough. The fact that assaultive behavior
was used in Stearns’ crimes against B.G. and D.H., and that Williams had also
been struck and strangled, without more, does not establish a common scheme or
plan under the controlling case law.
For example, in Brown, which the State cites in support of its contention that
the other act evidence was properly admitted to rebut Stearns’ defense of consent,
Brown bound both S.S. and H.W. with the same handcuffs, gagged, and shaved
them before eventually raping them and slitting their throats. 132 Wn.2d at 573-
74. Our Supreme Court held that these common facts rendered the assault of S.S.
“markedly similar” to Brown’s attack on H.W. only two days prior. Id. at 574.
Williams promised drugs to all of the victims in his cases then choked them from
behind in the same manner, and ultimately “strangled [them] to unconsciousness
during the rape[s].” Williams, 156 Wn. App. at 491. The court in Yates relied on
the standard articulated in Brown to conclude that the State had presented
7 Wash. Ct. of Appeals oral arg., supra, at 8 min., 29 sec. 8 Stearns reiterated this point during argument before this court, noting that; “Unfortunately,
physical force is inherent in the vast majority of sexual assaults. . .” Id. at 3 min, 21 sec.
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sufficient evidence of a common scheme or plan because it had shown that Yates
lured “[W]hite or light-skinned women” who were sex workers into his vehicle,
negotiated for sex acts, shot them in the head with a small caliber firearm,
“encase[ed] their heads in plastic bags to ensure their deaths and to prevent their
blood from saturating the vehicle,” undressed them and took any money he found,
and transported the bodies to “dump sites in secluded areas.” 161 Wn.2d at 753.
Finally, in Lough, the court found the testimony of four women, unknown to each
other, that Lough had drugged 9 and anally raped them, was admissible as
evidence of a common scheme or plan in his trial for attempted rape in the second
degree, indecent liberties, and burglary in the first degree where the victim, P.A.,
also asserted that Lough drugged and assaulted her. 10 125 Wn.2d at 849-52.
Here, Stearns, whose prior advances had been rejected, gained entry to
B.G.’s apartment in the middle of the night through their familiarity via her brother
and with a story that someone was after him, and ultimately vaginally raped her
three times. He later attacked D.H., an older stranger, in the middle of the street
during the evening commute and attempted to digitally penetrate her. Finally, the
State alleged that Stearns bludgeoned and strangled Williams pursuant to a
vaginal rape in the early morning hours in a public park. As Stearns noted in
briefing and oral argument before this court, the jurisprudence requires that the
evidence must be of “markedly similar acts [of misconduct] against similar victims
under similar circumstances,” in order to be admissible under ER 404(b) as
9 Three of the women testified that Lough drugged them with a drink, and the fourth stated
that he gave her what he described as a pain pill. Lough, 125 Wn.2d at 850-52. 10 P.A. and another woman also testified to finding the clothes they had been wearing
neatly folded nearby upon awaking. Id. at 851.
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evidence of a common scheme or plan. 11 The facts here do not support admission
on this basis.
The similarities between the cases involving B.G., D.H., and Williams are
simply too tenuous to constitute a common scheme or plan. The trial court abused
its discretion in ruling that the other act evidence was admissible under ER 404(b)
for that purpose.
2. Evidence of Lack of Consent
The trial court also admitted evidence of the B.G. and D.H. convictions as
probative of the forcible compulsion element of the rape of Williams or, alternately,
to rebut Stearns’ defense that any sexual contact with Williams prior to her death
was consensual. The State relies heavily on Brown, which did admit the other act
evidence, among other reasons, to rebut Brown’s assertion that the sexual contact
with the deceased victim H.W. was consensual. 132 Wn.2d at 574. The trial court
here expressly noted that, particularly in light of the prejudice that would come from
admitting evidence of the B.G. and D.H. convictions, in the absence of Stearns’
consent defense, it likely would have excluded the evidence. However, as Stearns
notes, other act evidence may not be admitted to show that the accused has a
propensity to commit crimes, a criminal disposition, or bad character. But Brown,
Lough, and the other controlling cases on ER 404(b) evidence all clearly establish
that even if the other acts are admissible for some purpose that is not propensity,
the evidence may still be inadmissible if the prejudice outweighs the probative
11 Wash. Ct. of Appeals oral arg., supra, at 4 min., 40 sec.
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value. See Brown, 132 Wn.2d at 571; Lough, 125 Wn.2d at 862; Slocum, 183 Wn.
App. at 456; Saltarelli, 98 Wn.2d at 361.
3. Improper Considerations as to Prejudice
Even if it may be admitted for some permissible purpose under ER 404(b),
the evidence may still be excluded if its probative value is outweighed by potential
prejudice. In order to engage in this fourth step of the analysis under the rule, trial
courts must effectively apply ER 403, which reads in relevant part, “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.”
The trial court also abused its discretion in this final step of its analysis
because its determination of prejudice was based on untenable grounds. The
judge stated the following when making the ruling:
I disagree with defense that juries do not listen to limiting instructions. In fact, I think juries are exceptionally careful in King County. I have sat as a visiting judge in other counties, and, frankly, I think we have a very fair population or they are not big fans of the police. They are not big fans of the prosecutor’s office, and they are quick to hold the State accountable, and I also believe that they do follow the law when they are given a limiting instruction.
(Emphasis added.)
The State argued this court should disregard that statement as the trial
judge had already ruled on the admissibility of the other act evidence, but the
record establishes that this was part of the court’s ruling. The judge was rejecting
the defense argument against admission that the prejudice from this evidence
could not be tempered with a limiting instruction; effectively, that the ER 403
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standard prevented its admission. In doing so, she relied on her own anecdotal
experience based on sitting “as a visiting judge in other counties” to conclude that
“juries are exceptionally careful in King County.” There is nothing in our state’s
evidence rules or jurisprudence that allows the application of a county-by-county
standard with regard to the admission of prejudicial evidence. This is a plainly
improper consideration with regard to the final factor of the ER 404(b) analysis,
which ultimately resulted in the ruling to admit the challenged evidence. This was
an untenable ruling that rested on untenable grounds.
D. Harmless Error
If we determine that the trial court erred as to an evidentiary ruling, we then
consider whether its admission was harmless. “Erroneous admission of evidence
in violation of ER 404(b) is analyzed under the nonconstitutional harmless error
standard—that is, we ask whether there is a reasonable probability that, without
the error, the ‘outcome of the trial would have been materially affected.’” State v.
Gower, 179 Wn.2d 851, 854-55, 321 P.3d 1178 (2014) (internal quotation marks
omitted) (quoting State v. Smith, 160 Wn.2d 772, 780, 725 P.2d 951 (1986)). “As
we pointed out in Gresham, the potential for prejudice from admitting prior acts is
‘at its highest’ in sex offense cases.” Id. at 857 (internal quotation marks omitted)
(quoting Gresham, 173 Wn.2d at 433). In Gresham, the court noted that admission
of “highly prejudicial evidence” created “a reasonable probability” that the jury’s
verdict was “materially affected.” 173 Wn.2d at 433-34.
In Stearns’ prosecution here, the State made significant use of the evidence
admitted under ER 404(b), and Baird, the DPA originally assigned to the case,
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even consulted with the appellate unit of the prosecutor’s office to determine
whether and how the other act evidence could be used in the prosecution of
Williams’ murder. In fact, Baird specifically testified in a pretrial hearing on the
defense motion to dismiss for improper preaccusatorial delay that he “didn’t think
[the case against Stearns] should be filed without a consideration of the
admissibility of other acts.” The DPA who took the case over from Baird and tried
it in 2020 first mentioned the B.G. and D.H. convictions in opening statements,
repeatedly returning to those facts throughout the State’s initial presentation of its
case to the jury. Both B.G. and D.H. testified at trial and were not cross-examined
by the defense. The DPA then referenced their testimony numerous times in
closing, often in conjunction with detailed descriptions of Williams’ injuries, which
compounded the possibility of prejudice and risk of a material effect on the verdict.
A limiting instruction was given to the jury when the other act evidence was
introduced and we presume that a jury follow the instructions of the court. See
State v. Weaver, 198 Wn.2d 459, 467, 496 P.3d 1138 (2021). However, during
his testimony on the pretrial motion to dismiss, Baird effectively conceded the
comparative weakness of the State’s case without the other act evidence when he
described how that factored into his decision to finally file charges. It is also
noteworthy that Stearns’ previous trial ended in a hung jury. These facts, and the
entirety of the record before us, establish a reasonable probability that the court’s
error in admitting evidence of the B.G. and D.H. convictions under ER 404(b)
materially affected the outcome of Stearns’ trial. Accordingly, reversal is required.
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While the ER 404(b) issue is independently dispositive, we reach the
remaining assignments of error as they are capable of repetition in the event that
the State elects to retry Stearns.
II. Judge’s Comments during Issuance of Jury Instructions
Stearns alleges reversal is required due to irregularities in the trial judge’s
instruction of the jury. He argues his right to fair trial was violated when, in two
separate instances, the judge expressly informed jurors they could “tune out” her
reading of the jury instructions. The challenged comments are first:
As soon as I have everybody I’m going to instruct you on the law. You will each have a copy of the instructions on the law. You can read along with me. You can tune me out. You can do a combo. You are going to be able to keep those instructions when you go back to begin your deliberations. So that will be the first order in the morning.
(Emphasis added.) And later:
THE COURT: Good morning. Welcome back and please be seated. You each have instructions on your individual seat. I’m going to read them to you out loud. You may follow along with me. You may tune me out. It just depends on how you learn. You may do a combo. May be able to take these back once you being your deliberations. If I say something different than what’s in the written instructions, follow the written instructions unless there is an obvious typo. If there is a typo, I will let you know. Take your pen, and I will tell you what the interlineation should be.
As a preliminary matter, the State argues this issue is not preserved for
appeal. RAP 2.5 allows a reviewing court to consider a matter for the first time on
appeal if it implicates a constitutional right and the error is manifest. State v.
Kirkman, 159 Wn.2d 918, 934-35, 155 P.3d 125 (2007). “‘Manifest’ in RAP
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2.5(a)(3) requires a showing of actual prejudice.” Id. at 935. A party seeking
review of an issue under the manifest constitutional error standard must make a
“plausible showing . . . that the asserted error had practical and identifiable
consequences in the trial of the case.” State v. Lynn, 67 Wn. App. 339, 345, 835
P.2d 251 (1992). Stearns properly presented this challenge under RAP 2.5.
Inadequate instruction of the jury, or its omission entirely, is an error of
constitutional magnitude because due process requires instruction on “the
presumption of innocence and the right to have the State prove every element of
the offense beyond a reasonable doubt.” State v. Ackerman, 11 Wn. App. 2d 304,
309-310, 453 P.3d 749 (2019) (quoting State v. Johnson, 100 Wn.2d 607, 614,
674 P.2d 145 (1983), overruled on other grounds by State v. Bergeron, 105 Wn.2d
1, 711 P.2d 1000 (1985)). Here, Stearns contends that because the judge said
jurors could tune her out, “there is no way to ensure that each juror was instructed
on applicable law.” This necessarily calls into question whether the jury here
properly decided this case, presenting a “practical and identifiable consequence”
in terms of Stearns’ due process rights. Thus, we consider this assignment of
error.
“The court shall read the instructions to the jury.” CrR 6.15(d). This court
presumes the jury follows its instructions. Weaver, 198 Wn.2d at 467. “But that
rule will not cure a trial court’s failure to support a written instruction with an oral
recitation; a trial court’s failure to recite an instruction to the jury is analogous to
giving an erroneous, ambiguous, or misleading instruction.” State v. Sanchez, 122
Wn. App. 579, 590, 94 P.3d 384 (2004). Nor will a reviewing court “presume the
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jury reads written instructions alone or that the jury was sufficiently literate to
comprehend the instructions accurately.” Id.
The case law Stearns relies on for this claimed error is distinguishable
because it addresses instances where the judge declined to read the instructions
at all. See People of the Territory of Guam v. Marquez, 963 F.2d 1311 (9th Cir.
1992); Sanchez, 122 Wn. App. 589; United States v. Becerra, 939 F.3d 995 (9th
Cir. 2019). That is simply not what happened here. Becerra is informative,
however, as it explains that
even if a jury is comprised of an unusually educated cross-section of the community, many of us at times succumb to the temptation to glaze over a long paragraph of text or flip over a few pages of a lengthy stack of papers. When the instructions are read orally, tonal inflection can make the content of the instructions more accessible, as well as discourage the “tuning out” common when reading dense material. Oral instruction in the formal courtroom setting thus assures that jurors are exposed to the substance of the essential instructions by at least one sensual route.
939 F.3d at 1001. The court went on to reinforce that
[j]ury instructions are not the judicial equivalent of a car manual or a cookbook. When an enrobed judge orally charges the jury, the jurors are impressed with the fact that they have been entrusted with the power to decide the defendant’s fate.
Id.
Though the particular comments by the judge here are indisputably ill-
advised and should be avoided, they do not rise to the level of reversible error.
Considered in context, and coupled with the fact that the jury instructions were
read, Stearns fails to establish reversible error on this issue.
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III. Prosecutorial Misconduct
Finally, Stearns asserts the State engaged in prosecutorial misconduct in
closing arguments “when, over defense objection, [the DPA] argued that, unlike
Mr. Stearns, the jurors cared about Ms. Williams.” He contends that this comment
improperly suggested to the jury that acquittal would mean the “jurors did not value
Ms. Williams life.” In reply, the State avers that these statements were permissible
inferences from the record and “there is no plausible chance that the jury would
have acquitted in their absence.” We agree that the challenged statements were
improper, however Stearns has not established prejudice within the framework of
the trial as a whole such that the misconduct requires reversal.
In a prosecutorial misconduct claim, the defendant has the burden to show
that the challenged conduct was improper and prejudicial in the context of the
entire record. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). To
demonstrate prejudice, Stearns must establish that there exists a substantial
likelihood that the misconduct affected the jury’s verdict. Id. at 443. “A prosecuting
attorney represents the people and presumptively acts with impartiality in the
interest of justice.” Id. “Defendants are among the people the prosecutor
represents. The prosecutor owes a duty to defendants to see that their rights to a
constitutionally fair trial are not violated.” State v. Monday, 171 Wn.2d 667, 676,
257 P.3d 551 (2011). A prosecutor is required to “seek convictions based only on
probative evidence and sound reason.” State v. Casteñeda-Perez, 61 Wn. App.
354, 363, 810 P.2d 74 (1991).
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“[A] prosecutor engages in misconduct when making an argument that
appeals to jurors’ fear and repudiation of criminal groups or invokes racial, ethnic,
or religious prejudice as a reason to convict.” State v. Perez-Mejia, 134 Wn. App.
907, 916, 143 P.3d 838 (2006). “[I]nflammatory remarks, incitements to
vengeance, exhortations to join a war against crime or drugs, or appeals to
prejudice or patriotism are forbidden.” Id. “A prosecutor may not suggest that
evidence not presented at trial provides additional grounds for finding a defendant
guilty.” State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994). “References to
evidence outside of the record and bald appeals to passion and prejudice
constitute misconduct.” State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).
“Allegedly improper arguments should be reviewed in the context of the total
argument, the issues in the case, the evidence addressed in the argument and the
instructions given.” Russell, 125 Wn.2d at 85-86.
Here Stearns asserts the following comments by the prosecutor in initial
closing were an improper appeal to emotion and not relevant to the elements of
the charged offense:
[State:] These are extraordinary times. Unlike the defendant who clearly did not care at all about Ms. Williams. Didn’t even consider her to exist. We know you care. We know you as jurors—
[Defense]: Objection, your Honor. Improper argument.
THE COURT: It’s overruled.
[State]: We know because you’re seated here during a pandemic wearing masks, and you are honoring your duty as a juror. Once I am done talking to you, at the end of the day today, and you start your deliberations the State is confident that you will return a verdict of guilty of murder in the first degree.
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Stearns notes that “[t]his argument served no other purpose but to inflame
the passion and prejudice of the jury.” We agree that the DPA’s argument here
has nothing to do with the evidence in the case and was improper.
However, despite the fact that the comment could fairly be characterized as
an improper appeal to passion, Stearns directly responded to it in closing argument
in such a way as to remind the jurors to disregard that invitation to decide the case
on improper grounds. Further, defense counsel went on to actually exploit this
aspect of the State’s closing and expressly argued that the DPA resorted to such
tactics due to the lack of evidence, stating,
And if you think about it much of the State’s case is actually based on emotional [sic]. Saying she was left there like a piece of trash. It was a cold, wet park. That is an appeal to emotion. Right? Because they have to prove that it was John Stearns who did it. Not somebody else. So saying he left her there like a piece of trash. That’s not an appeal to facts and law and logic. That is appealing to emotion, and it’s because the science doesn’t prove their case, and the witnesses don’t prove their case, and all that’s left is the emotion. But when you follow the law you will see that the prior convictions do not unequivocally prove guilt.
Considering the State’s improper argument in the context of the trial as a whole,
including Stearns’ effective response in closing, Stearns cannot meet his burden
as to prejudice on this claim.
Reversed and remanded.
WE CONCUR:
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