State v. Baker

950 P.2d 486
CourtCourt of Appeals of Washington
DecidedJanuary 12, 1998
Docket38631-0-I
StatusPublished
Cited by3 cases

This text of 950 P.2d 486 (State v. Baker) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Baker, 950 P.2d 486 (Wash. Ct. App. 1998).

Opinion

950 P.2d 486 (1997)

STATE of Washington, Respondent,
v.
Joseph BAKER, Appellant.

No. 38631-0-I.

Court of Appeals of Washington, Division 1.

November 3, 1997.
Publication Ordered January 12, 1998.

*488 Catherine L. Floit, James R. Dixon, Nielsen Broman & Assoc. Pllc, Seattle, for Appellant.

K.G. Long, Prosecuting Atty., Skagit Co. Pros. Atty. Office, Mount Vernon, Kelly M. Willig Lee, Smart, Cook, Martin, Seattle, for Respondent.

*487 ELLINGTON, Judge.

Joseph Baker was convicted of first degree child molestation. The trial court admitted evidence of Baker's alleged molestation of his daughter 11 to 15 years earlier to show a common scheme or plan and to rebut his accident defense. We find the evidence admissible for both purposes, and affirm.

Facts

On the evening of the alleged molestation, Baker held a "slumber party" in his camper with his girlfriend's daughters, eight-year-old N.H., and her two sisters. N.H., wearing pajamas, shorts, and underpants, slept in bed with Baker. Baker rubbed her back as she went to sleep. She awoke later when she felt Baker rubbing her "privates" through her clothes. She immediately left to tell her mother what happened. Later N.H.'s mother told her that it was an accident because Baker was asleep, but N.H. thought he was awake.[1]

Before trial, the State sought to admit testimony about Baker's other alleged assaults on sleeping children to show a common scheme or plan to sexually assault sleeping children and to show that the molestation was not an accident. At a preponderance hearing, the State presented testimony from Baker's daughter, Kathy Baker Mitchell, and Baker's half-sister, June Good.

Kathy Mitchell testified that when she visited Baker between the ages of seven or eight and eleven, he would sleep in bed with her, rub her back before she went to sleep, and she would awaken during the night with her underwear pulled down and his hand between her legs. The defense attacked Mitchell's credibility by way of testimony from other members of Baker's family. The court also heard testimony from a prosecutor who chose not to pursue charges against Baker for Mitchell's alleged molestation because Mitchell could be impeached on collateral issues.

The court found by a preponderance of the evidence that the touching of Kathy Mitchell occurred,[2] that the incidents were substantially similar, and that her testimony was admissible to show that the touching of N.H. was part of a common scheme or plan and was not an accident. The court balanced the relevance of the evidence against its prejudice and found it admissible under State v. *489 Lough, 125 Wash.2d 847, 889 P.2d 487 (1995), ruling that the abuse of sleeping children was similar to the drugging of victims because the vulnerable state of the victims created a diminished ability to describe what occurred. The court ruled that the necessity of this testimony was great, and that its relevance outweighed any unfair prejudice. The court limited Mitchell's testimony to the touching that occurred when she was around the same age as N.H., excluding testimony from Mitchell about later touchings or other bad acts.

In addition, the court considered June Good's testimony that Baker had raped her when she was a child. The court found that Good's allegations were also proven by a preponderance of the evidence, but excluded her testimony because it was not as reliable or necessary as Mitchell's testimony.

At trial, Baker testified that he did not believe N.H. would he about his touching her, and that if he did touch her, it was done accidentally while he was asleep. Baker also testified that he never molested Kathy Mitchell. Before Mitchell testified, the court instructed the jury that it could consider her testimony only to determine whether the touching of N.H. was part of a common scheme or plan or was an accident.

As part of the jury instructions, the court again instructed the jury that Mitchell's testimony was only admissible to determine whether the alleged touching was part of a common scheme or plan and whether it was an accident. The court instructed the jury that it could not consider Mitchell's testimony as evidence of Baker's character or as evidence that Baker acted in conformity therewith in this case.[3] The jury found Baker guilty.

Analysis

Baker contends that the trial court erred in admitting Kathy Mitchell's testimony about his prior bad acts. Before admitting evidence of other wrongs under ER 404(b),[4] a trial court must (1) find that a preponderance of evidence shows that the misconduct occurred; (2) identify the purpose for which the evidence is being introduced; (3) determine that the evidence is relevant; and (4) find that its probative value outweighs its prejudicial effect. Lough, 125 Wash.2d at 852, 889 P.2d 487. In doubtful cases, the evidence should be excluded. State v. Smith, 106 Wash.2d 772, 776, 725 P.2d 951 (1986).

Baker first argues that a preponderance of the evidence did not show that he molested Mitchell. A court's preponderance determination will be upheld if it is supported by substantial evidence. State v. Benn, 120 Wash.2d 631, 653, 845 P.2d 289, cert. denied, 510 U.S. 944, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993).

Here, the trial court considered Mitchell's testimony that during her visitation with Baker between the ages of seven and eleven, he slept in bed with her, rubbed her back until she went to sleep, and would then pull her underwear down and place his hands between her legs. Family members disputed whether Baker slept with Mitchell at their homes, but Baker had unrestricted visitation with Mitchell. In addition, contrary to Baker's contention on appeal, the prosecutor chose not to pursue charges based upon Mitchell's allegations because she could be impeached on collateral issues, not because her allegations were not credible.

Mitchell's testimony provided substantial evidence supporting the trial court's preponderance determination. To the extent that this determination involved resolution of *490 credibility issues, they were for the trial court. When any reasonable view of disputed facts supports the trial court's finding, it will not be disturbed on appeal. See State v. Roth, 75 Wash.App. 808, 816, 881 P.2d 268 (1994), review denied, 126 Wash.2d 1016, 894 P.2d 565 (1995).

After making the preponderance determination, the trial court must identify a proper purpose for the admission of the evidence under ER 404(b). Lough, 125 Wash.2d at 853, 889 P.2d 487. The trial court here admitted Mitchell's testimony to show that the touching of N.H. was part of a scheme or plan, and to rebut Baker's accident defense. Bake argues that neither purpose provided a proper basis for admission.

Baker contends that the events Mitchell described were too remote in time and were not sufficiently similar to show a common scheme or plan.

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Related

State v. Fisher
202 P.3d 937 (Washington Supreme Court, 2009)
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Bluebook (online)
950 P.2d 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-baker-washctapp-1998.