State v. Lough

Decision Date23 February 1995
Docket NumberNo. 60646-3,60646-3
Citation125 Wn.2d 847,889 P.2d 487
CourtWashington Supreme Court
PartiesThe STATE of Washington, Respondent, v. Lynn Roderick LOUGH, Petitioner.

Allen & Hansen, P.S., David Allen, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Pamela Mohr, Deputy, Seattle, for respondent.

George Wm. Cody, Lynnwood, amicus curiae for Petitioner on Behalf of Washington Ass'n of Criminal Defense Lawyers.

JAMES A. ANDERSEN, Justice Pro Tem. *

FACTS OF CASE

The Defendant, Lynn Roderick Lough, was convicted by a jury of attempted second degree rape, indecent liberties and first degree burglary stemming from events that occurred on July 22, 1988.

The Defendant was a paramedic employed by King County Emergency Medical Services. He met P.A., the complaining witness, while he was teaching an emergency medical training class at the company where she worked. The Defendant and P.A. made a date to meet at her home on July 22, 1988, to watch a rented video. P.A. testified that the Defendant mixed her a drink and that shortly after beginning to drink it she felt dizzy and very disoriented. She testified that her memory was confused after this, but that she recalled her sweatpants being pulled down and the Defendant's genitals in her hands and by her face. She testified that when she awoke, she was nude from the waist down and that the Defendant was gone. She testified that she found her pants and underpants folded on the arm of the sofa.

The Defendant denied he had drugged or assaulted P.A. He testified that after he and P.A. had several drinks, he and P.A. started kissing and that they had consensual sexual intercourse. P.A. testified that at 8 a.m. the following morning, the Defendant telephoned and asked her how she was feeling. When she said she was confused about what had happened, he assured her nothing had happened. The Defendant denies having said this. P.A. expressed concern about the evening to friends, and asked the advice of a friend who was a police officer, but did not officially report it to the police at that time. In 1990, when she read in a newspaper article about a King County paramedic who was being investigated for drugging and raping several women, she contacted the police and told them about the incident in 1988. The State charged Lough with indecent liberties, attempted rape and burglary in the first degree.

Prior to the beginning of trial, the Defendant moved to exclude testimony concerning his alleged druggings and rapes of four other women. The trial court held a pretrial hearing and ruled that the evidence was admissible for the purpose of showing a common scheme or plan to drug and sexually abuse women. At trial, the four other women testified that while they had been in relationships with Lough, he had slipped them drugs in drinks and raped them. None of these other women knew or was known by the complaining witness. The four witnesses each testified that the Defendant had surreptitiously drugged and raped them.

M. testified that sometime in 1978 or 1979, Lough came to the home where she was staying and told her she looked tired and that she probably needed an iron supplement. He then gave her a glass of orange juice in which he told her he had put an iron supplement. She testified that shortly after consuming the drink, she passed out and remembered waking up during this period of unconsciousness and semi-consciousness because of the pain of anal intercourse. She testified that later when she accused Lough of raping her, he told her that if she told anyone that, he would just deny it and she could not prove it and so she had no choice. She said that when she tried to call a friend regarding this event, Lough took the phone, threw her to the floor and kicked her. She testified she went to the hospital but, due to embarrassment, she did not inform the doctor of the anal rape. She testified that several years later when she threatened to report the rape, the Defendant told her that he would not bother her if she did not report it. She did not report it to the police until after the police contacted her because of a similar alleged incident reported by another woman. The Defendant denied he had ever drugged or raped M. or intentionally hit her, although he said he might have hit her accidentally once when he was trying to take the phone away from her.

D. testified that one evening in 1980, Lough gave her a drink and she became dizzy. She testified to remembering Lough trying to kiss her and that she passed out and awoke naked on her bed. She testified that she found the clothes she had been wearing neatly folded on a footstool. She testified that when she awoke her anus was very sore and she was bleeding from her anus and vagina. She said that when she confronted Lough, he told her that no one would ever believe her if she reported it. Lough denied ever drugging or having intercourse with D.

K. testified that sometime in 1986, Lough gave her some pain medication for a broken arm which put her to sleep. She testified that she awoke to find her clothing removed and her rectum bleeding. She testified that when she confronted Lough about the incident, he claimed that they had consensual anal sex. Lough testified that he never gave K. any medication without her knowledge and that they had consensual anal intercourse two or three times.

P. testified that one night in 1988 Lough gave her some juice and she went to sleep. She testified that she awoke with a terrible pain and that blood was coming out of her anus. When she confronted Lough he gave a noncommittal response and she testified that he told her that no one would believe her if she reported the rape. Lough denied ever drugging or having anal intercourse with P.

The jury convicted the Defendant on all counts charged in connection with the incident involving P.A. and he was sentenced to an exceptional sentence of 60 months. The Defendant appealed his conviction to the Court of Appeals contending that the trial court committed error by admitting the testimony of the four women who testified that the Defendant had surreptitiously drugged them and raped them while they were under the influence of the drugs. He also challenged the length of his sentence. The Court of Appeals affirmed his convictions, finding that the evidence of his prior misconduct with the other women was admissible for the purpose of proving the existence of a common plan or scheme and therefore admissible under Rule of Evidence 404(b). The Court of Appeals reasoned that the evidence showed that the Defendant was the mastermind of a plan to utilize his special skill for the purpose of drugging and sexually assaulting women he knew with a drug that would render his victims somnolent and at least partially amnesiac. 1 The Court of Appeals also upheld the trial court's imposition of an exceptional sentence.

We accepted review to consider when evidence is admissible under ER 404(b) for the purpose of proving a common plan or scheme.

ISSUE

Was evidence that the Defendant had previously drugged and raped four other women, while in relationships with them, admissible evidence in this case for the purpose of showing a common plan or scheme under ER 404(b)?

DECISION

CONCLUSION. We conclude that a common plan or scheme may be established by evidence that the Defendant committed markedly similar acts of misconduct against similar victims under similar circumstances. Proof of such a plan is admissible if the prior acts are (1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.

ER 404(b) provides:

Evidence 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.

Rule 404(b) thus provides that prior misconduct is not admissible to show that a defendant is a "criminal type", and is thus likely to have committed the crime for which he or she is presently charged. However, crimes or misconduct other than the acts charged may be admitted for a variety of other reasons including the proving of a scheme or plan of which the offense charged is a manifestation. 2 When the very doing of the act charged is still to be proved, one of the facts which may be introduced into evidence is the person's design or plan to do it. 3 If the evidence is offered for a legitimate purpose, then the exclusion provision of rule 404(b) does not apply.

To admit evidence of other crimes or wrongs under Washington law, the trial court must (1) identify the purpose for which the evidence is sought to be introduced, (2) determine whether the evidence is relevant to prove an element of the crime charged and (3) weigh the probative value of the evidence against its prejudicial effect. 4 Additionally, the party offering the evidence of prior misconduct has the burden of proving by a preponderance of the evidence that the misconduct actually occurred. 5

The trial court scrupulously followed the criteria set forth by this court to be applied when admitting ER 404(b) evidence. The court in its ruling first identified the purpose for which the evidence was admitted.

[T]he offer is for the purpose of providing evidence in this case of common scheme or plan; i.e., a larger criminal design of which the charged crime is only one part. There must be enough specific and unique features in common between the offenses to show that the plan or scheme was carried out by committing the charged offense.... In the instant case, the common scheme or plan is the overarching, pre-existing scheme or plan as follows....

The control of women by rendering them unconscious by...

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