State v. Fiser

• Decision Date: 17 March 2000
• Docket Number: No. 23492-1-II.
• Citation: State v. Fiser, 995 P.2d 107, 99 Wash.App. 714 (Wash. App. 2000)
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Steven FISER, Appellant.

995 P.2d 107

99 Wash.App. 714

STATE of Washington, Respondent, v.Steven FISER, Appellant.

No. 23492-1-II.

Court of Appeals of Washington, Division 2.

March 17, 2000.

Thomas Edward Doyle, Hansville, Patricia Anne Pethick, (Court Appointed) Tacoma, for Appellant.

Jon Tunheim, Thurston Co. Deputy Pros.Atty., Olympia, for Respondent.

BRIDGEWATER, C.J.

Steven Fiser, appeals his conviction of two counts of sexual misconduct with a minor.We affirm.

Steven Fiser was a teacher at Yelm High School during the school years of 1994 and 1995.During this time, A.G. was a junior at Yelm High School.She was sixteen years old when the academic year began.In the beginning of her junior year, A.G. was a student in Fiser's history class.At the end of her history class, A.G. became involved in girl's fast pitch softball.The season for girl's fast pitch softball started around the end of February 1995.Fiser was her coach on the softball team.

Fiser invited A.G. to baby-sit at his house in January of 1995.On that evening Fiser asked if he could kiss her.Fiser kissed her and then engaged in sexual intercourse with her.

After this first event of sexual intercourse, A.G. considered her relationship with Fiser to have changed from a teacher/student to a boyfriend/girlfriend relationship.She was flattered by this relationship with Fiser, an admired teacher.She had private access almost everyday to Fiser, who was her teacher and coach.Frequently during these private times, they would talk about school events, how Fiser was not happy in his marriage, and they would kiss.Fiser would issue her notes to excuse her from other classes so that she could come to his classroom during his "prep period."She also told the jury that she had access to Fiser's classroom, his desk, and his computer.Because of their relationship, she said she felt like she could ask Fiser for things she could not ask other teachers.

A.G. also testified about two more sexual episodes with Fiser that occurred in his classroom.First, toward the end of February 1995, A.G. performed oral sex on Fiser when she was working in his classroom on a school project, after Fiser wrote her a note to get out of class.Second, she told the jury the last time they had sexual intercourse was in Fiser's classroom, when he was getting ready for a noon hour pep rally.She was helping Fiser get dressed as a cheerleader for the school event.

K.S. also testified at trial.She went to Tumwater High School during the school year of 1994 to 1995. K.S. told the jury that she did not know A.G. Fiser was a substitute for one of her classes during her freshman year, and he was her volleyball coach.K.S. testified that she also had a sexual relationship with Fiser, including oral sex.K.S. said that she would often go to Fiser's house and explain to her parents that she was babysitting.K.S. explained that their relationship eventually ended in February or March of 1995.

Fiser denied any sexual contact with either A.G. or K.S. Fiser explained that A.G. had no special privileges on the softball team or in his classroom.He acknowledged that A.G. took a U.S. history course from him that ended January 27, 1995, and that he gave her a "C-" grade.On February 9, 1998, Fiser was charged by information with two counts of sexual misconduct with a minor in the first degree based on the two episodes of sexual intercourse between Fiser and A.G. in the classroom at Yelm High School.Before trial, the defendant filed a motion to exclude the testimony of K.S. under ER404(b).The motion was heard during a pretrial hearing on April 29, 1999.The State argued that the evidence should be admitted under ER404(b) for the purpose of determining a common plan or scheme that would corroborate A.G.'s testimony or for the purpose of determining credibility.Because the two girls did not know each other and because their descriptions of Fiser's behavior were similar, the State argued that K.S.'s testimony refuted Fiser's claim that A.G. fabricated the allegation.

The court denied the motion to exclude the testimony.The court ruled that K.S. could testify for the limited purposes of showing that Fiser had a common purpose or plan and for determining A.G.'s credibility in ER404(b).Before K.S. testified, the court instructed the jury to consider her testimony only for purposes of determining whether or not there was a common purpose, plan or circumstances involving the abuse of a supervisory position for a particular purpose.At the end of trial without objection from Fiser, the court instructed the jury before deliberation that they should consider K.S.'s testimony only for the purpose of judging A.G.'s credibility.

The jury found Fiser guilty of two counts of sexual misconduct with a minor in the first degree.Fiser was sentenced within the standard range.The court also imposed special conditions that Fiser appeals.

I.Sufficient Evidence of Abuse of Supervisory Position

Fiser first challenges his conviction on the sufficiency of the evidence for the two counts of sexual misconduct with a minor.Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.State v. Salinas,119 Wash.2d 192, 201, 829 P.2d 1068(1992)."A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom."Salinas,119 Wash.2d at 201, 829 P.2d 1068.Circumstantial evidence and direct evidence are equally reliable.State v. Delmarter,94 Wash.2d 634, 638, 618 P.2d 99(1980).In determining whether the necessary quantum of proof exists, the reviewing court need not be convinced of the defendant's guilt beyond a reasonable doubt, but only that substantial evidence supports the State's case.State v. Galisia,63 Wash. App. 833, 838, 822 P.2d 303, review denied,119 Wash.2d 1003, 832 P.2d 487(1992).Credibility determinations are for the trier of fact and are not subject to review.State v. Camarillo,115 Wash.2d 60, 71, 794 P.2d 850(1990).This court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.State v. Walton,64 Wash.App. 410, 415-16, 824 P.2d 533, review denied,119 Wash.2d 1011, 833 P.2d 386(1992).

Fiser was charged with two counts of sexual misconduct with a minor in the first degree.The Revised Code of Washington defines this crime:

(1) A person is guilty of sexual misconduct with a minor in the first degree when the person has, or knowingly causes another person under the age of eighteen to have, sexual intercourse with another person who is at least sixteen years old but less than eighteen years old and not married to the perpetrator, if the perpetrator is at least sixty months older than the victim, is in a

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