State v. DeVincentis

Decision Date14 August 2003
Docket NumberNo. 72819-4.,72819-4.
Citation74 P.3d 119,150 Wash.2d 11
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Louis A. DeVINCENTIS, Petitioner.

Suzanne Elliott, James Roe, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, James Whisman, Deputy, Heather Jensen, Deputy, Seattle, for Respondent.

Washington Appellate Project, Thomas Kummerow, Gregory Link, Seattle, Amicus Curiae on Behalf of Wa. Assoc. of Criminal Defense Lawyers.

JOHNSON, J.

This case involves the issue of whether admitting evidence of prior misconduct as a common scheme or plan under Evidence Rule (ER) 404(b) requires that the evidence show a unique or atypical method of committing the crime, or merely show sufficient similarities to suggest a common scheme or plan. In a prior case, Division Two of the Court of Appeals held that the common scheme or plan exception requires the similarities to be atypical or unique to the way the crime is usually committed. In the present case, Division One disagreed and held that the exception requires only substantial similarities between the acts, which are naturally explained by a common scheme or plan. We agree with Division One and hold that to admit evidence of prior bad acts as evidence of a common scheme or plan under ER 404(b), the trial court need only find that the prior bad acts show a pattern or plan with marked similarities to the facts in the case before it. We affirm Louis A. DeVincentis' conviction and the Court of Appeals opinion in this case.

FACTUAL & PROCEDURAL HISTORY

In the summer of 1998, K.S. was 12 years old. Her friend, C.K., lived next door to DeVincentis. That summer, DeVincentis offered the girls money to mow his lawn. After checking with their mothers, the girls accepted and began to mow his lawn together about once a week.

Sometime during September of 1998, DeVincentis asked K.S. and C.K. to clean his house. After the girls cleaned together once, DeVincentis asked only K.S. to come back. While K.S. cleaned, DeVincentis would be present in the house, wearing only a g-string or bikini underwear. DeVincentis would acknowledge that he was in a state of undress by saying something to the effect of "I hope you don't mind." Report of Proceedings (RP) at 908. No one else would be present during these times.

One day at the end of October, K.S. arrived at DeVincentis' house to clean. DeVincentis told her that he was sore from exercising and asked her to give him a massage. Wearing only bikini underwear, DeVincentis lay on the couch on his stomach and K.S. massaged his back. After the massage, K.S. felt uncomfortable and left. DeVincentis told her not to tell anyone or she would be in trouble.

A few weeks later, K.S. returned to clean DeVincentis' house at his request. When she reached the bedroom, DeVincentis was there, again wearing only a g-string. He asked K.S. to massage him. He lay on the floor and told K.S. to take off her clothes, which she did. As K.S. massaged DeVincentis' back, he took off his g-string and asked her to massage his buttocks. DeVincentis then directed K.S. to massage his legs. Then, DeVincentis told K.S. to lie down, and he massaged her back, buttocks, and legs. DeVincentis then lay on his back and asked K.S. to massage his stomach and eventually his penis until he ejaculated. K.S. testified that DeVincentis then massaged her chest. He then touched inside her vagina, hurting her. K.S. testified that she was scared during this and wanted to go home. K.S. told him she had to go home, and as she left, he again told her not to tell anyone.

K.S. returned to DeVincentis's home again in November. DeVincentis wore a g-string. After she finished cleaning, K.S. found DeVincentis in his bedroom. DeVincentis asked K.S. if she wanted to give him another massage. She testified that she was scared but said yes. K.S. testified that she was afraid that DeVincentis would not allow her to refuse. He told K.S. to remove her clothes, and the massaging and sexual contact proceeded as it had the previous time. Afterward, DeVincentis again warned K.S. not to tell anyone or she would be in trouble.

K.S. eventually told her mother about these events. Her mother reported the events to the police in January 1999. DeVincentis was charged with one count of second degree rape of a child and one count of second degree child molestation. Clerk's Papers (CP) at 1.

Evidence of Prior Bad Acts

Prior to trial, the State sought admission of evidence that DeVincentis had been convicted of crimes involving sexual misconduct with young adolescent girls in New York several years before, including those with V.C., which led to a 1983 conviction for sexual abuse.

At a hearing, V.C. testified that in 1983 she was 10 years old and the best friend of DeVincentis' daughter. V.C. spent three or four evenings a week at DeVincentis' home and he was usually present, wearing nothing but bikini or g-string underwear. V.C. testified that the sight of DeVincentis in small underwear became normal to her. After a birthday party for DeVincentis' daughter, DeVincentis took V.C. to his bedroom and showed her pictures of naked people. He asked her if she had seen a penis before. DeVincentis was wearing bikini briefs, and he asked V.C. if it bothered her that he was dressed like that.

On another occasion, DeVincentis had V.C. sit on his home rowing machine. DeVincentis sat behind her and she felt what she now understands to be his erection pressing against her back. On this occasion he also "put[ ] his hand in [her] private areas and press[ed] down on them hard." RP at 509. DeVincentis then showed her another exercise machine and touched her chest and private area and pressed his erection against her back. On another occasion, DeVincentis demanded that V.C. try on transparent, mesh-like clothing. DeVincentis stored books and magazines with pictures of nude people throughout his house where his daughter and V.C. could find them. Once he offered V.C. ten dollars to pose for a nude picture like one in a magazine.

V.C. testified that she had memory flashes of being naked with DeVincentis in his bedroom and him asking for back massages. V.C. also testified that she had memory flashes of DeVincentis putting his erection on her and in her mouth and that he ejaculated on her.

The State argued that these prior bad acts were sufficiently similar to the charged crimes to show a common scheme or plan to molest young girls and were therefore admissible under State v. Lough, 125 Wash.2d 847, 889 P.2d 487 (1995). Over DeVincentis' objection, the trial court agreed and admitted the testimony of V.C. The court excluded other evidence of DeVincentis' sexual misconduct with other prior victims, but ruled that the testimony of V.C. "establishe[d] sufficient similarity in the modus operandi and the location to support a common scheme or plan." CP at 10; RP at 226-27.

In its written findings, the trial court noted that in DeVincentis' conduct with both V.C. and K.S., he wore only bikini or g-string underwear, giving the impression that it was normal, and asked both girls if they minded his lack of clothes. He asked both girls to remove their clothes. He asked both for massages and to masturbate him until he ejaculated. He asked both girls not to tell. The trial court ruled that DeVincentis' lack of clothing showed a design or plan to add a sense of normalcy to his behavior and to gain the trust of the girls by desensitizing them to his nudity, thereby making "it easier to move from nudity to physical skin-to-skin touch and sexual behavior." CP at 10. The trial court found the evidence of this plan relevant to whether DeVincentis had sexual contact with K.S. In a bench trial, DeVincentis was convicted as charged.

Court of Appeals Opinion

Division One of the Court of Appeals agreed with the trial court that V.C.'s testimony was admissible under Lough. Rejecting an interpretation of Lough by Division Two requiring the similarities to be unique or atypical,1 Division One held that there were sufficient similarities between V.C.'s testimony and that of K.S. to support finding a common scheme or plan. State v. DeVincentis, 112 Wash.App. 152, 162, 47 P.3d 606 (2002). "A rational factfinder could well conclude that DeVincentis used a particular strategy to win each girl's cooperation, over time, in her own victimization." DeVincentis, 112 Wash.App. at 162-63,47 P.3d 606.

ANALYSIS
Divisional Split on Requirements for a Common Scheme or Plan

At issue here is the proper factual foundation for the admission of evidence of prior bad acts as proof of a common scheme or plan under ER 404(b). This court reviews the correct interpretation of an evidentiary rule de novo as a question of law. See State v. Walker, 136 Wash.2d 767, 771-72, 966 P.2d 883 (1998). Once the rule is correctly interpreted, the trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. See Lough, 125 Wash.2d at 856, 889 P.2d 487.

A trial court must always begin with the presumption that evidence of prior bad acts is inadmissible. ER 404(b) prohibits admission of evidence to prove a defendant has a criminal propensity. The rule states that:

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

ER 404(b).

The State must meet a substantial burden when attempting to bring in evidence of prior bad acts under one of the exceptions to this general prohibition. We have established the analysis for admission of evidence of prior bad acts to prove a common scheme or plan in Lough, 125 Wash.2d 847, 889 P.2d 487. The prior acts must be "(1) proved by a preponderance of the evidence, (2) admitted for the purpose of...

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