IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 81094-4-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) RENE PHILLIP DALLAS, ) ) Appellant. ) )
HAZELRIGG, J. — Rene P. Dallas seeks reversal of his convictions for child
molestation in the first degree and rape of a child in the first degree. He argues
that the trial court erred in allowing testimony about an uncharged act as evidence
of a lustful disposition, and he contends that the evidence presented at trial was
insufficient to prove the charges beyond a reasonable doubt. Because the trial
court did not abuse its discretion in admitting evidence of the prior act and the State
produced sufficient evidence to support each conviction, we affirm.
FACTS
A.L.M. was born in April 1996 and has lived in Whatcom County all her life.
A.L.M.’s mother, Monique Lacasse, began dating Dallas when A.L.M. was about
a year old. Dallas and Lacasse had two children together, N.D. and A.D. In 2003,
when A.L.M. was in second grade and Lacasse was pregnant with A.D., A.L.M.,
Lacasse, N.D., and Dallas moved into a house in Custer, Washington. A.L.M. had
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her own room in the three-bedroom house. Although Dallas and Lacasse shared
a room, Dallas slept on the living room couch most nights. N.D. and A.D. also
shared a room, but they often slept with Lacasse. A.L.M. typically spent weekends
at her grandmother’s house or friends’ houses. Lacasse and Dallas broke up in
January 2008, and he moved out of the Custer house.
Ten years later, in January 2018, A.L.M. reported that Dallas had sexually
abused her when she was 11 years old. Dallas was arrested and charged with
child molestation in the first degree and four counts of rape of a child in the first
degree for events alleged to have occurred on or about January 6, 2007 through
January 9, 2008.
Before trial, Dallas moved in limine to exclude testimony regarding an
alleged uncharged incident in which Lacasse saw him looking in the window of
A.L.M.’s bedroom while she was getting dressed. He argued that testimony about
the incident was not admissible under ER 404(b) and, even if admissible, that it
should be excluded because it was more prejudicial than probative. The State
argued that the testimony would be admissible as evidence of a lustful disposition.
The court heard oral argument on the motion but reserved ruling until it could hear
an offer of proof from the witness.
The next day, the court heard further argument from the parties on the case
law regarding evidence of a lustful disposition. Defense counsel argued that the
evidence was potentially relevant only to the child molestation charge and that it
was far more prejudicial than probative. The court again reserved ruling, stating
that it wanted to hear from the witness outside the jury’s presence before deciding
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the issue. Defense counsel expressed confusion as to why the court needed to
hear the testimony “because we generally agree as to what the facts of that
allegation would be.” The court stated,
You may agree to what those facts are but they are not in front of [the] court yet. It has to be presented to me. If you guys want to sign a stipulation as to facts and present that to me, now I may have some basis for making that decision. . . . [U]nder the circumstances, I have to hear what she ha[s] to say. I have to know that to know whether or not there is really a grounds for it being included as part of the evidence that the jury will hear, so I need to hear from the witness.
The court heard an offer of proof from Lacasse before she testified in front
of the jury. She stated that she kicked Dallas out of the house in January 2008
and described the circumstances that led to him moving out. One evening, A.L.M.
was bathing after a nighttime soccer game. Lacasse saw A.L.M. walk from the
bathroom to her bedroom wearing only a towel. Soon after, Dallas went to the
garage, and Lacasse assumed he was going to smoke a cigarette. But she noticed
that he put his shoes on, which he did not usually do when he went into the garage.
Lacasse “got a really sick feeling” and looked out the front door, triggering the
motion-sensor light. She saw Dallas standing on a white plastic chair, looking into
A.L.M.’s bedroom window. Lacasse “freaked out” and knocked on A.L.M.’s door
to ask if she was getting dressed. A.L.M. confirmed that she was, and Lacasse
“started going crazy.” She loaded the children into the van, but Dallas blocked the
exit with his car. Lacasse ran over Christmas decorations in the yard and drove
to a gas station. She did not report the incident to law enforcement, but stated, “I
parked in a handicapped spot because I hoped that a sheriff would pull up and talk
to me.”
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After Lacasse testified, the court allowed further argument on the issue.
Defense counsel argued that the testimony was “far more prejudicial than it is
probative” and that there was nothing to indicate that the act was of a sexual
nature. The State argued that the evidence demonstrated a sexual proclivity
toward A.L.M. because Dallas “was looking in the window of an under-aged female
that was in the midst of changing her clothes, so, to say there was nothing sexual
about that is a pretty gross mischaracterization.” The State acknowledged that the
evidence was prejudicial, as the State’s evidence in a criminal case tends to be,
but argued that it was not overly prejudicial and the probative value of the evidence
was not outweighed by that prejudice.
The court ruled that Lacasse’s testimony was admissible as evidence of
collateral sexual misconduct. The court then considered the prejudicial impact of
the evidence:
Is it prejudicial? It’s as prejudicial as probative evidence might otherwise be and I think that the term, the language of art that’s often used is that probative evidence is, in fact, prejudicial if it tends to prove a thing to be true. I think the question that comes in is something that can be resolved by cross-examination. How does she know what he was observing? She can see where he was standing, she could see where he was looking, so, you know, she drew some inferences for that, and I think that’s something that can [be] sorted out in cross-examination[.] . . . It’s not being presented in order to say his behavior was in conformity because he was looking in the window. It’s to say that there is a lustful disposition and I think it comes down to cross-examination and who those jurors believe when testimony is presented to them, whether they believe Ms. Lacasse or not.
The court denied Dallas’ motion to exclude Lacasse’s testimony about the
uncharged incident.
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At trial, A.L.M. testified that Dallas began sexually abusing her the summer
after she finished fifth grade, when she was about 11 years old. The first incident
occurred in late June 2007. A.L.M. awoke in the middle of the night to find Dallas
sitting on the side of her bed and touching her vulva.1 Her pajama pants were
pulled down to her knees. Although her room was dark, the bedroom door was
not fully closed, and she remembered seeing the outline of Dallas’ goatee and
glasses in the light from the hallway. She also smelled cigarette smoke. Dallas
was a heavy smoker. A.L.M. testified that the touching lasted less than a minute
after she woke up because she pulled back and Dallas left right away when he
realized she was awake. The following morning, A.L.M. tried to act like nothing
had happened. She did not tell anyone about the incident because she was
scared. The next week, A.L.M. again woke up in the night to find that her pajama
pants and underwear were pulled down and Dallas was rubbing her vulva. Like
the previous incident, Dallas left when he realized A.L.M. was awake.
The third incident took place a few days before the Fourth of July 2007.
A.L.M. woke up in pain because Dallas was digitally penetrating her vagina. Her
pajama pants and underwear were pulled down, and Dallas was leaning over her,
closer than he had been the previous times. A.L.M. jerked away, and Dallas looked
flustered and left. The fourth instance occurred before A.D’s birthday in mid-July.
A.L.M. awoke with her pajamas, underwear, and blankets pulled down. Dallas was
leaning over her and digitally penetrating her vagina. He stopped when she moved
away. The fifth occasion that A.L.M. remembered happened before Christmas in
1 Although A.L.M. described the area in her testimony as the surface of her vagina, it is clear from context that she was referring to her vulva.
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the winter of 2007. She again woke up in pain because Dallas was digitally
penetrating her vagina. Although A.L.M. felt like she could not talk and could barely
move, she moved away from his hand and Dallas stopped.
A.L.M. did not remember any other instances of Dallas touching her
inappropriately, but she testified that she woke up two other times with her pants
and underwear off. She was able to recognize Dallas each time because she saw
the silhouette of his glasses, goatee, and clothes in the light from the hallway and
smelled cigarette smoke.
A.L.M. decided to report the abuse to law enforcement in 2018 because she
wanted to make sure Dallas would not do this to anyone else. She did not tell
anyone about the abuse as it was happening because she was scared that Dallas
was going to kill her and her family. Although Dallas never threatened her directly
while the abuse was occurring, A.L.M. testified that Dallas and Lacasse’s
relationship “g[o]t physical” almost every day and that Dallas “beat the crap out of
[her] mom in front of [her].” A.L.M. said that he threatened Lacasse with an axe
and “would threaten to run [them] off the road.” During the summer of 2007, A.L.M.
took melatonin supplements at night to help her sleep, explaining, “If I didn’t[,] I
would get up screaming and crying from my mom and him hurting her.”
A.L.M. acknowledged that her mother did not pay much attention to her after
her siblings were born. The two tended to argue, and A.L.M. felt that Lacasse did
not spend time with her because “[s]he was always sad.” A.L.M. initially viewed
Dallas as a father figure when she was young, but they did not develop “a normal
daughter-dad relationship” and “didn’t interact.” She stated that he would never
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talk to her directly, and she avoided being around him because she was scared of
him. Although Dallas still did not interact with A.L.M. after the sexual abuse
occurred, he bought her Christmas presents for the first time that year.
Lacasse also testified that Dallas treated A.L.M. differently than the other
children. She said that she “never really saw him . . . even acknowledge [A.L.M.’s]
existence,” that he did not seem to like her, and that he seemed resentful that she
was around. Lacasse indicated that, before January 2008, A.L.M. frequently
witnessed verbal arguments between Dallas and Lacasse and witnessed physical
altercations between them “at least every month.”
Lacasse then testified in front of the jury about the incident that led to Dallas
moving out of the Custer house in January 2008. She and Dallas were in the living
room with N.D. and A.D. while A.L.M. was bathing after a late soccer game.
Lacasse saw A.L.M. walking down the hallway to her room wearing only a towel,
and then Dallas got up to go smoke. Lacasse noticed that Dallas’ shoes were
gone, which was unusual because normally he did not wear shoes when he would
smoke in the enclosed garage. She opened the front door to look outside, and the
motion-sensor light turned on. She saw Dallas standing on a plastic chair and
looking into A.L.M.’s bedroom window. He would not have been able to see into
the window from ground level. When the light came on, Dallas turned behind him
to look at the golf course parking lot, then turned back to face the window. Lacasse
started yelling and swearing at Dallas. He stumbled off the chair and said nothing
to her. Lacasse walked down the hall to A.L.M.’s room, knocked on the door, and
asked if she was getting dressed. A.L.M. said she was, and Lacasse “lost it.”
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Lacasse testified that she did not report the incident to law enforcement,
explaining: “I felt like it would be my word against his and he was so manipulative
and I didn’t have that energy. I didn’t even know if it would be provable. I didn’t
know what to do.” She asked A.L.M. if anything else like that had happened to
her, and A.L.M. shook her head. Lacasse maintained contact with Dallas
regarding N.D. and A.D. until 2010.
A.L.M. first told Lacasse about the sexual abuse in 2016. During this
conversation, A.L.M. was “very hysterical [and] upset.” Lacasse did not make a
report to law enforcement at the time because A.L.M. did not want her to, but she
confronted Dallas. She said she never heard from him again after that. Lacasse
eventually went with A.L.M. to speak with law enforcement in 2018.
After A.L.M. testified, the State moved to amend the information to conform
to her testimony, charging Dallas with two counts of child molestation in the first
degree and three counts of rape of a child in the first degree for events alleged to
have occurred on or about January 6, 2007 through January 9, 2008. The jury
found Dallas guilty on all counts. He appealed.
ANALYSIS
I. Evidence of Lustful Disposition
Dallas contends that the trial court erred in admitting Lacasse’s testimony
that she had seen Dallas looking into A.L.M.’s bedroom window while she was
getting dressed. He argues that this ruling denied him a fair trial.
A trial court’s interpretation of an evidentiary rule is a question of law that
we review de novo. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).
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But, so long as the trial court’s legal interpretation of an evidentiary rule is correct,
the court’s admission of evidence is reviewed for abuse of discretion. Id. Even if
the reviewing court disagrees with the trial court, we will not reverse a discretionary
decision unless it is “‘manifestly unreasonable or based on untenable grounds or
untenable reasons.’” State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013)
(quoting In re Marriage of Littlefield, 133 Wn.2d 39, 46–47, 940 P.2d 1362 (1997)).
“ER 404(b) prohibits a court from admitting ‘[e]vidence of other crimes,
wrongs, or acts . . . to prove the character of a person in order to show action in
conformity therewith.’” State v. Foxhoven, 161 Wn.2d 168, 174–75, 163 P.3d 786
(2007) (quoting ER 404(b)). The rule does not preclude the admission of evidence
of a defendant’s acts for other purposes such as proving motive, intent, common
scheme or plan, or lack of mistake or accident. ER 404(b). Evidence of other
crimes, wrongs, or acts may be admitted for these purposes so long as the trial
court (1) finds by a preponderance of the evidence that the misconduct occurred,
(2) identifies the purpose for which the evidence is sought to be introduced, (3)
determines whether the evidence is relevant to prove an element of the crime
charged, and (4) weighs the probative value of the evidence against any prejudicial
effect. Foxhoven, 161 Wn.2d at 175.
The party offering ER 404(b) evidence has the burden of proving by a
preponderance of the evidence that the misconduct actually occurred. State v.
Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995). A reviewing court will uphold
a trial court’s preponderance determination if it is supported by substantial
evidence. State v. Baker, 89 Wn. App. 726, 732, 950 P.2d 486 (1997). The third
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and fourth steps of the ER 404(b) analysis ensure that the evidence does not run
afoul of ER 402 or ER 403, which prohibit irrelevant evidence and allow a court to
exclude relevant evidence if its probative value is substantially outweighed by the
danger of unfair prejudice. State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207
(2012).
The analysis of the admissibility of evidence under ER 404(b) must be
conducted on the record. Foxhoven, 161 Wn.2d at 175. This requirement “both
facilitates appellate review and ensures that the judge gives thoughtful
consideration to the issue.” State v. Pirtle, 127 Wn.2d 628, 650–51, 904 P.2d 245
(1995). However, “if the record shows that the trial court adopted one of the
parties’ express arguments as to the purpose of the evidence and that party’s
weighing of probative and prejudicial value, then the trial court’s failure to conduct
its full analysis on the record is not reversible error.” State v. Asaeli, 150 Wn. App.
543, 576 n.34, 208 P.3d 1136 (2009) (citing Pirtle, 127 Wn.2d at 650–51).
Evidence of a defendant’s prior collateral sexual misconduct is admissible
for the purpose of showing the defendant’s “lustful disposition” toward a victim.
State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991). To admit evidence of
lustful disposition in accordance with ER 404(b), the evidence proffered must be
directly connected to the alleged victim, establishing not just general proclivity but
demonstrating a sexual desire for the specific individual. See id. “‘The kind of
conduct receivable to prove this desire . . . is whatever would naturally be
interpretable as the expression of sexual desire. . . . Sexual intercourse is the
typical sort of such conduct, but indecent or otherwise improper familiarities are
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equally significant.’” State v. Ferguson, 100 Wn.2d 131, 134, 667 P.2d 68 (1983)
(quoting State v. Thorne, 43 Wn.2d 47, 60–61, 260 P.2d 331 (1953)) (emphasis
omitted).
The State argues that the trial court went through the appropriate ER 404(b)
analysis and reasonably exercised its discretion to admit this evidence. Dallas
disagrees, arguing that the trial court did not address all of the necessary factors
for admission on the record and focused on the fact that, although the evidence
was prejudicial, such prejudice could be resolved by cross-examination.
First, Dallas argues that the court never made a finding that the window-
peeping event occurred by a preponderance of the evidence. Dallas is correct that
there is not an explicit finding in the oral record. However, it is clear from the
court’s refusal to decide the motion before hearing testimony from the witness that
the court understood that it had to make a factual determination regarding the prior
act. Considering all of these factors, it is reasonable to conclude that the court
adopted the State’s position regarding the first element of the analysis. Substantial
evidence supports the implicit finding by a preponderance of the evidence that the
misconduct occurred because Lacasse testified about the specifics of the incident.
Dallas also argues that any probative value of this evidence was
substantially outweighed by the overwhelming, undue prejudicial effect. The court
clearly considered the prejudicial effect of this evidence. However, the court made
clear that it believed the prejudicial effect of the evidence could be mitigated using
cross-examination. Under these circumstances, the court appears to have
adopted the State’s argument that the probative value of the evidence was not
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outweighed by the danger of unfair prejudice. We cannot say that the court abused
its discretion in doing so.
The multiple opportunities for oral argument from the parties and extensive
discussion of applicable case law show that the court was clearly mindful of the
need to find by a preponderance that the event occurred before proceeding to
consideration of prejudice and, ultimately, admissibility. The trial judge took
testimony to establish what the testimony would be and then proceeded to the next
stage of the inquiry for admission. We can conclude from the record that the
preponderance standard was satisfied and that the judge weighed both the
probative and prejudicial nature of the testimony. Although we would certainly
encourage a trial court to make a more explicit record of its analysis of evidence
under ER 404(b), the court’s failure to conduct the analysis in full on the record is
not fatal in this instance.
II. Sufficiency of Evidence
Dallas also argues that the State did not present sufficient evidence at trial
to prove each of the crimes charged beyond a reasonable doubt. Due process
requires the State to prove its case beyond a reasonable doubt. State v. Baeza,
100 Wn.2d 487, 488, 670 P.2d 646 (1983). When reviewing the sufficiency of the
evidence presented at trial, the question is whether, after viewing the evidence in
the light most favorable to the State, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. Green, 94
Wn.2d 216, 221, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of
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the State’s evidence and all reasonable inferences from the evidence. State v.
Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
When reviewing the sufficiency of the evidence, we must draw all
reasonable inferences from the evidence in favor of the State and interpret them
most strongly against the defendant. Id. Under this standard, circumstantial
evidence is deemed equally as reliable as direct evidence. State v. Cardenas-
Flores, 189 Wn.2d 243, 266, 401 P.3d 19 (2017). “‘Circumstantial evidence is
evidence of facts or circumstances from which the existence or nonexistence of
other facts may be reasonably inferred from common experience.’” State v.
Jackson, 145 Wn. App. 814, 818, 187 P.3d 321 (2008) (quoting 11 WASHINGTON
SUPREME COURT COMMITTEE ON JURY INSTRUCTIONS, W ASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL § 5.01, at 124 (2d ed. 1994)).
However, the existence of a fact cannot rest on guess, speculation, or conjecture.
State v. Colquitt, 133 Wn. App. 789, 796, 137 P.3d 892 (2006). “‘Credibility
determinations are for the trier of fact’ and are not subject to review.” Cardenas-
Flores, 189 Wn.2d at 266 (quoting State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d
850 (1990)).
The testimony of an alleged sex offense victim need not be corroborated to
sustain a conviction. RCW 9A.44.020(1). The Washington Supreme Court has
recognized that “[s]uch offenses are rarely if ever committed under circumstances
permitting knowledge and observation by persons other than the accused and the
complaining witness, and not all such offenses are otherwise capable of
corroboration.” State v. Galbreath, 69 Wn.2d 664, 670, 419 P.2d 800 (1966).
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A. Rape of a Child
At the time of Dallas’ trial, a person could be convicted of rape of a child in
the first degree “when the person has sexual intercourse with another who is less
than twelve years old and not married to the perpetrator and the perpetrator is at
least twenty-four months older than the victim.” Former RCW 9A.44.073(1) (1988),
amended by LAWS OF 2021, ch. 142, § 2. For the purpose of sexual offenses, the
term “sexual intercourse” “has its ordinary meaning and occurs upon any
penetration, however slight,” including “any penetration of the vagina or anus[,]
however slight, by an object, when committed on one person by another.” RCW
9A.44.010(1).
A.L.M. testified that Dallas had digitally penetrated her vagina on three
separate occasions in 2007, when she was 11 years old. Testimony also showed
that A.L.M. and Dallas were not married and that Dallas was 16 years older than
A.L.M. Sufficient evidence existed for each of the charges of rape of a child in the
first degree.
B. Child Molestation
At the time of Dallas’ trial, a person could be convicted of child molestation
in the first degree “when the person has . . . sexual contact with another who is
less than twelve years old and not married to the perpetrator and the perpetrator
is at least thirty-six months older than the victim.” Former RCW 9A.44.083(1)
(1994), amended by LAWS OF 2021, ch. 142, § 5. “Sexual contact” is defined as
“any touching of the sexual or other intimate parts of a person done for the purpose
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of gratifying sexual desire of either party or a third party.” RCW 9A.44.010(2).
“Sexual gratification” is not an essential element of the crime but is meant to clarify
the definition of the essential element of “sexual contact.” State v. Lorenz, 152
Wn.2d 22, 34–35, 93 P.3d 133 (2004). Contact is considered “intimate” within the
meaning of the statute if it is of such nature that a person of common intelligence
could be fairly expected to know that, under the circumstances, the parts touched
were intimate and therefore the touching was improper. Jackson, 145 Wn. App.
at 819. Breasts and genitalia are considered intimate areas. Id.
Again, there was sufficient testimony at trial to establish that A.L.M. was 11
years old in the summer of 2007, that she was not married to Dallas, and that
Dallas was at least 36 months older than she was. A.L.M. testified about two
specific occasions on which Dallas touched the exterior of her genitalia. This is an
intimate area, and a person of common intelligence could be fairly expected to
know that the touching was improper under the circumstances. There was
sufficient evidence in the record to support each conviction of child molestation in
the first degree.
Affirmed.
WE CONCUR:
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