Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 65935-9-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                      v.                    )
                                            )
JOHN EDWIN ERICKSON,                        )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: April 2, 2012
                                            )

       Lau, J.  --  John Erickson appeals his conviction for child molestation in the first 

degree.  The trial court admitted evidence of Erickson bathing naked with his daughter 

and his alleged possession of pornography to show common scheme or plan evidence 

under ER 404(b) and to show context for Erickson's admissions.  Because admission of 

this evidence was well within the trial court's discretion, we find no error.  The State 

concedes that certain conditions of community custody are not crime related and are 

therefore invalid.  We accept the State's concession and remand with instructions to 

strike those conditions.  We otherwise affirm.  

                                            FACTS

       Witnesses at trial testified to the following events:  In November 2008, when JS 

65935-9-I/2

was five years old, she lived with John Erickson, his wife Riana, their two young 
children, and Shaun, Erickson's adult son from a previous relationship.1 Shaun is the 

former long-term boyfriend of Lindsey Smith, JS's mother. While not JS's biological 

father, Shaun has treated JS as his daughter since she was born. Erickson and Riana 

took care of JS when she was not in school and Shaun was working.

       Smith's mother, Karen Vangog often looked after JS on weekends.  One day 

around this time, while Vangog was bathing her, JS said, "Papa John showed me how 

to have a baby."  4 Report of Proceedings (RP) (May 5, 2010) at 639.  Vangog asked 

how he did that, and JS said, "[H]e got on top of me."  4 RP (May 5, 2010) at 640.  

Vangog told Smith about what JS had said but took no further action.     

       When Shaun returned home midday on November 15, 2008, he did not see JS 

with other family members in the living area and went up to the bedroom he shared with 

JS.  The bedroom door was closed, and when he opened it, Shaun discovered JS 

watching one of his pornographic films.  Shaun turned it off and told JS that what she 

was watching was not appropriate for children.  JS appeared to be "confused" and 

responded, "Why is that, Daddy?  Me and Papa John do stuff like that."  3 RP (May 4, 

2010) at 432, 437.  Shaun asked JS what she meant by "stuff" and she said, "stuff like 

what she saw on TV."  3 RP (May 4, 2010) at 438.  Shaun also asked, "[A]re you sure 

you mean Papa John?" and JS said, "'Yes, Daddy, Papa John.'"  3 RP (May 4, 2010) at 

       1 Because several family members share the same last name, we refer to John 
Erickson as "Erickson" and Shaun and Riana Erickson by their first names to avoid 
confusion.

                                            -2- 

65935-9-I/3

438.

       Several months later, a child interview specialist interviewed JS and JS

eventually told the interviewer that "Pepper John" did some "bad things" and told her it 

was a "secret." Ex. 14, at 5, 11, 18.  She described a "pee pee thing" where "he rubs 

the pee pee and then you rub and the seeds come out."  Ex. 14, at 25.  JS said this 

happed in Erickson's bedroom while she was lying on the bed in her underwear with 

her clothes off so they would not get "all seedy."  Ex. 14, at 28.  She recounted that 

"Pepper John" was standing beside the bed, unzipped his zipper, and that his "pee 

pee" was "just like a stick."  Ex. 14, at 27.  She said he used his hand to rub himself and 

"seeds   . . . squirt out" and she felt the "seeds" on her "pee pee."  Ex. 14, at 31.  JS 

said it happened more than one time.

       The State charged Erickson with one count of child molestation in the first 

degree.  After a hearing, the court determined that JS was competent to testify.  At trial, 

JS reluctantly testified that "Papa John" touched his "private," touched her body with his 

"private part," and that "white stuff" came out and got on her private part.  3 RP (May 4, 

2010) at 527, 529.

       Several witnesses testified about statements Erickson made over the years 

about children and sex.  According to Shaun, his father expressed the view that people, 

specifically girls, "should experience sex as young as they can."  3 RP (May 4, 2010) at 

427.  A family friend, Shannon Casey, recalled a conversation in which she told 

Erickson that she lost her virginity before she was thirteen years old, which she 

believed was a detrimental experience.  Erickson responded, "Well I want my daughter 

                                            -3- 

65935-9-I/4

to experience sex as soon as possible."  6 RP (May 10, 2010) at 899.  Casey told 

Erikson that she thought thirteen was nevertheless "a little young." 6 RP (May 10, 

2010) at 899.  Erickson looked at her and reiterated, "As soon as possible."  6 RP (May 

10, 2010) at 899.  Vangog also testified that Erickson told her on one occasion that 

"kids should learn about sex early on and the younger they are, the better."  4 RP (May 

5, 2010) at 635.      

       The trial court also admitted evidence of several prior alleged acts.  Casey 

testified about one time when she visited Erickson's house and he was upstairs bathing 

three children, including JS and his own three-year-old daughter.  When Erickson 

emerged from the bathroom with the children, he was clothed, but his hair and beard 

were wet.  Another time when Casey visited, Erickson was bathing his daughter and 

JS.  Casey opened the door and saw that Erickson was wet and naked, although Casey 

could only see him from the waist up.  

       Another witness, Karen Skaggs, testified about a different bathtub incident and 

about Erickson's views on sexuality and children.  Skaggs was in a relationship with 

Erickson and lived with him between 2000 and 2002.  She testified that over the course 

of the relationship, Erickson made numerous comments about the propriety of exposing 

children to sex that made her increasingly uncomfortable about his views.  Skaggs also 

testified that each year in the summer, Erickson's daughter from a prior relationship, 
BS,2 visited from Arizona.  One time when BS was about five or six, Skaggs returned 

       2 Although the limiting instruction and the briefs refer to "B.E.," according to
Erikson's testimony, his daughter's initials are "B.S."  

                                            -4- 

65935-9-I/5

from the grocery store to find the bathroom door locked.  When Erickson eventually opened the 

door for Skaggs, BS was in the bathtub and he was wet and wearing only a towel.  

Skaggs later confronted Erickson and he said he "was just having a bath with her; that 

it was very natural; that [it] was important that young girls see their fathers naked; that 

they learn sexuality from their parents."  6 RP (May 10, 2010) at 836.

       Skaggs also testified that she moved out of Erickson's home after finding some 

"images" on his computer.  6 RP (May 10, 2010) at 845.  Following this discovery, 

Skaggs said she became "fairly hysterical" and confronted him.  6 RP (May 10, 2010) at 

849.  According to Skaggs, Erickson at first denied knowing anything about the images, 

but then admitted they were his, insisted it was a "natural thing" and mentioned the 

organization "NAMBLA" (North American Man/Boy Love Association). Skaggs said that 
eventually Erickson cried and begged her not to do anything.3

       The State argued pretrial that the bathing incidents evidence was admissible as 

evidence of a common scheme or plan.  Erickson maintained that the incidents were 

not relevant to the allegations raised by JS.  The court ruled that the bathing incidents 

showed a "common plan or scheme with respect to attempting to gain access to young 

girls, to engage in grooming type activity with respect to young girls, and to have 

access to them for improper purposes" and that the evidence was more probative than 

prejudicial.  1 RP (Apr. 22, 2010) at 86.  The court did not rule, however, that evidence 

of possession of pornography was admissible as common scheme or plan evidence.  

       3 In addition to excluding evidence of the nature of the images, the court also 
excluded Skaggs's testimony that she reported the incident to the police.

                                            -5- 

65935-9-I/6

Concerned about the inflammatory nature of this evidence, the court determined that 

Skaggs's testimony should be "sanitized" and she could testify only that she saw some 

images as a means to explain the conversation that followed.  1 RP (Apr. 22, 2010) at 

85.  The court determined that what Erickson said in response to Skaggs after she 

made the discovery was "highly probative" and admissible.  1 RP (Apr. 22, 2010) at 83.    

       Following both Skaggs's and Casey's testimony, the court gave oral limiting 

instructions, cautioning the jury that Erickson was not on trial for any conduct that was 

not charged in the information, that evidence of prior bad acts was, on its own, not 

sufficient to prove that the defendant committed the charged crime, and that the State 

had the burden to prove each element of the crime.  The court also provided the jury 
with a similar written instruction on the bathing evidence.4  

       Erickson testified and denied molesting JS.  He disavowed the beliefs about 

sexuality and children as testified to by Shaun, Skaggs, Casey, and Vangog.  He 

claimed that JS was exposed to extensive amounts of pornography and her allegations 

described what she viewed, rather than what she experienced.   

       4 The written instructions instructed the jury as follows:
       "Certain evidence has been admitted in this case only for a limited purpose.  
This evidence may be considered by you for the purpose of determining whether or not 
the defendant had a common scheme or plan with regard to exposing young girls to sex 
and/or whether the defendant had a lustful disposition toward J.S. You may not 
consider it for any other purpose.  Any discussion of the evidence during your 
deliberations must be consistent with this limitation.  
       "This instruction applies to the testimony presented by Ms. Karen Roblee-
Skaggs regarding finding the defendant in the bathroom with his daughter, B.E.
       "This instruction also applies to the testimony presented by Ms. Shannon Casey 
regarding finding the defendant in the bathroom with J.S."

                                            -6- 

65935-9-I/7

       In closing, the State told the jury that the significance of the evidence of the 

bathing incidents was to determine whether the evidence showed a common scheme or 

plan for the "purpose of exposing children to sex."  7 RP (May 12, 2010) at 1077.  The 

prosecutor did not mention Erickson's possession of pornography or disturbing images.   

       The jury found Erickson guilty of the charge, and the court imposed an 

indeterminate sentence with a minimum term of 68 months and a maximum term of life.  

Erickson appeals. 

                             Admission of Prior Acts under ER 404(b)

       Erickson challenges the admission of Skaggs's testimony that she observed him 

naked in the bathroom with BS and that she discovered sexually explicit images on his 
computer under ER 404(b),5 which 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.

       The purpose of ER 404(b) is to prohibit the admission of evidence that suggests 

that the defendant is a "criminal type" and thus likely guilty of committing the crime with 

which he is charged.  State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).  The 

trial court may admit evidence of prior "crimes, wrongs, or acts" to show a common 

scheme or plan "when an individual devises a plan and uses it repeatedly to perpetrate 

separate but very similar crimes." Lough, 125 Wn.2d at 855.  Evidence of a common 

       5 Erickson does not challenge Casey's testimony about bathing incidents with JS
and other children. 

                                            -7- 

65935-9-I/8

scheme or plan is admissible because it is not an effort to prove the character of the 

defendant, but is instead offered to show that the defendant has developed a plan and 

has again put that particular plan into action. State v. Gresham, No. 84148-9, 2012 WL 

19664, at *6 (Jan. 5, 2012).   

       Evidence of a common scheme or plan may be used to show whether the 

charged incidents actually occurred or whether the victim was fabricating or mistaken.  

Lough, 125 Wn.2d at 862.  Before a court admits evidence under this rule, it must 

(1) identify the purpose for introducing the evidence, (2) determine relevancy to an 

element of the crime charged, (3) weigh the probative value against its prejudicial 

effect, and (4) decide if the evidence preponderates that the misconduct actually 

occurred.  Lough, 125 Wn.2d at 889.  For such evidence to be admissible, the other 

"crimes, wrongs, or acts" must be substantially similar to the charged crime.  State v. 

DeVincentis, 150 Wn.2d 11, 20, 74 P.3d 119 (2003).  The other "crimes, wrongs, or 

acts" and the charged crime must be "naturally explained as individual manifestations 

of a general plan." DeVincentis, 150 Wn.2d at 21; Lough, 125 Wn.2d at 853.  

Evidentiary rulings, including those under ER 404(b), are reviewed for abuse of 

discretion.  DeVincentis, 150 Wn.2d at 17. 

       Erickson claims the evidence was inadmissible because neither the bathing 

incident with BS nor the incident involving explicit images bore substantial similarity to 

the abuse described by JS.  Therefore, he argues that the evidence did not 

demonstrate a common scheme or plan.    

       Contrary to Erickson's argument, the record shows that the trial court admitted 

                                            -8- 

65935-9-I/9

no evidence that he possessed sexually explicit images.  Because of the inflammatory 

nature of the evidence, the court excluded any reference to pornography and allowed 

Skaggs to testify only generically about the images to provide context for Erickson's 

admissions.  Skaggs's testimony had probative value primarily because of Erickson's 

statements.  According to Skaggs, Erickson readily admitted to bathing with his 

daughter, but maintained that it was appropriate and important for children to see their 

parents naked so they can learn about sexuality.  Erickson also admitted to possessing 

the images, but insisted there was nothing wrong with doing so and mentioned the 

NAMBLA organization.  Erickson does not argue that his admissions should have been 

excluded.  Nor does he challenge the trial court's determination that the views he 

expressed were highly relevant.  See ER 801(d)(2) ("A statement is not hearsay if . . . 

[t]he statement is offered against a party and is . . . the party's own statement.");  see

also 5B Karl B. Tegland, Washington Practice:  Evidence § 801.35, at 389 (5th 

ed.2007) (A party's own statement is admissible if it "is in some way inconsistent with 

[his] position at trial.").

       The trial court explained that Erickson's incriminating statements were relevant 

and probative but not the images on the computer.  We conclude the trial court properly 

exercised its discretion when it limited Skaggs's testimony and excluded any testimony 

about the content of the images and Skaggs's call to police to report them.

       Erickson also claims that evidence he bathed with BS was not sufficiently similar 

to indicate a scheme or plan. We disagree.  The evidence here indicates striking 

similarities between Erickson's conduct with JS and his conduct with his oldest 

                                            -9- 

65935-9-I/10

daughter BS.  Both girls were five years old when Erickson bathed nude with them.  

The trial court aptly described this conduct as grooming behavior by Erickson to gain 

access to very young girls.  This behavior also furthered Erickson's plan to commit 

sexual acts against vulnerable-age girls by desensitizing them to adult male nudity.  

DeVincentis, 150 Wn.2d at 22 (evidence admitted under common scheme or plan 

exception included evidence that defendant walked around his house in front of 

preteen victims wearing nothing but "bikini or g-string underwear . . . to reduce the 

children's natural discomfort or negative reaction").  Erickson's own statements 

highlight this overarching plan to desensitize children to adult male nudity for the 

purpose of sexual molestation.  For example, he declared that it "was important that 

young girls see their fathers naked."  

6 RP (May 6, 2010) at 836).  Nor does the passage of time between the BS and JS 

incidents defeat admissibility of this evidence.  "[W]hen similar acts have been 

performed repeatedly over a period of years, the passage of time serves to prove, 

rather than disprove, the existence of a plan."  Lough, 125 Wn.2d at 860.  And in 

DeVincentis, our Supreme Court held that the evidence of prior misconduct was 

relevant to show that he had previously victimized another girl in a markedly similar 

way under similar circumstances despite the intervening 15 years between the two 

sexual abuse incidents.

       We are also unpersuaded by Erickson's argument that even if this evidence 

constitutes scheme or plan evidence, its prejudicial effect outweighs any probative 

value.  In State v. Krause, 82 Wn. App. 688, 919 P.2d 123 (1996), we reasoned that in 

                                            -10- 

65935-9-I/11

a child molestation case, 

       prior similar acts of sex abuse can be very probative of a common scheme or 
       plan.  The need for such proof is unusually great in child sex abuse cases, given 
              the secrecy in which such acts take place, the vulnerability of the victims, 
              the absence of physical proof of the crime, the degree of public 
              opprobrium associated with the accusation, the unwillingness of some 
              victims to testify, and a general lack of confidence in the ability of the jury 
              to assess the credibility of child witnesses. 

Krause, 82 Wn. App. at 696 (quoting State v. Wermerskirchen, 497 N.W.2d 235, 240-

41, (Minn. 1993)).  

       Here, the record shows that the trial court adhered to Lough's four factors 

analysis in determining to admit the evidence.  It specifically found the evidence more 

probative than prejudicial under ER 403.  The court's rationale constitutes tenable 

grounds supporting admission -- "it does show a common plan or scheme with respect 

to attempting to gain access to young girls, to engage in grooming type activity with 

such girls, and to have access to them for improper purposes."  1 RP (Apr. 29, 2010) at 

86.  The court also minimized the prejudicial impact by giving a proper limiting 

instruction.  Jurors are presumed to follow the court's instructions.  State v. Ervin, 158 

Wn.2d 746, 756, 147 P.3d 567 (2006).

       We conclude the trial court properly admitted the challenged evidence.

                             Conditions of Community Custody

       Erickson challenges the community custody condition that he not purchase or 

possess alcohol and the condition prohibiting him from accessing the Internet without 

prior approval of his community corrections officer (CCO) and sex offender treatment 

provider.  He argues that the trial court lacked authority to impose these two conditions 

                                            -11- 

65935-9-I/12

because they were not crime related.  The State concedes that these two conditions 

are not crime-related and should be stricken.  See Former RCW 9.94.700(5) (2003); 

State v. O'Cain, 144 Wn. App. 772, 775, 184 P.3d 1262 (2008) (prohibition on internet 

access without preapproval must be crime related in order to be valid).  We accept the 

State's concessions. 

                              Statement of Additional Grounds

       Erickson contends that the State had a duty to collect the digital video disk 

(DVD) that JS was watching when she disclosed the abuse to Shaun and to provide 
that evidence to him.  Erickson claims that the failure to do so amounts to a Brady6

violation and a violation of his right to due process.  The failure to disclose material 

evidence favorable to the defense violates an accused's due process rights if the 

evidence is material to guilt or innocence.  See Brady, 373 U.S. at 87.  No Brady or due 

process violation occurred here.  Erickson neither alleges nor establishes that the State 

suppressed or destroyed evidence.  The record indicates that no DVDs were removed 

from Erickson's home.  The defense found the DVD it believed JS had been watching.  

And while taking the position that the DVD was not available to him because of the 

State's actions, Erickson also challenges defense counsel's failure to introduce the 

DVD as evidence.  The record shows that counsel decided against presenting the 

actual footage to the jury due to its graphic and offensive nature.  We are unpersuaded 

by Erickson's argument that this decision was unreasonable.  Nor was he prevented 

       6 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

                                            -12- 

65935-9-I/13

from effectively arguing to the jury that JS's memory was tainted by pornography.

       Erickson argues that his counsel was ineffective because he was not allowed to 

elicit testimony about an alleged touching incident that occurred between JS and a boy 

at school.  But counsel advocated for admission of the testimony.  The trial court 

excluded it because there was insufficient evidence that the incident actually occurred.  

Even if it had occurred, the allegations bore no similarity or relationship to JS's 

allegations against Erickson.  

       Erickson claims defense counsel was ineffective with respect to the cross 

examination of several witnesses, including JS, Vangog, Smith, and Shaun.  But 

Erickson points to no material discrepancies that counsel failed to address.  Counsel 

discussed testimony that was favorable to the defense and discrepancies to the extent 

they were relevant to Erickson's theory.  Moreover, the jury heard the testimony, was 

aware of inconsistencies in certain details, and was able to assess credibility 

accordingly.  

       Erickson argues that the prosecutor engaged in misconduct and expressed her 

personal beliefs in closing argument when she argued to the jury that JS told the truth 

and that he was guilty of molestation.  Properly viewed in the context of the argument 

as a whole, these were arguments based on the evidence, not on the prosecutor's 

personal opinions.    

       Erickson also maintains that the prosecutor intentionally misstated JS's age 

during the charging period as five to six years old rather than four to five years old, in 

order to bolster the argument that it was inappropriate for Erickson to bathe with her.  

                                            -13- 

65935-9-I/14

But Erickson cannot establish that this comment was flagrant and ill intentioned or that 

any resulting prejudice could not have been cured by a prompt instruction.  See State 

v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).

       Erickson alleges that during Skaggs's testimony, the prosecutor referred to BS's 

statements that had been excluded.  However, the prosecutor did not ask about any 

statements made by BS.  She asked only about Erickson's reaction to Skaggs.  Even 

though Skaggs volunteered that Erickson remarked that his daughter "wasn't telling the 

truth," as the court noted, this testimony did not contravene the court's ruling.  6 RP 

(May 10, 2010) at 836.  The court excluded the substance of BS's statements but not 

Erickson's admissions.  

       Erickson argues that the court erred in finding JS competent to testify because 

JS failed to demonstrate that she had sufficient memory of events that occurred during 

the charging period when she was four to five and a half years old.  Appellate courts 

give great deference to the trial court's determination of a child's competency to testify

and will not disturb the court's determination absent proof of a manifest abuse of 

discretion.  State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967).

       Erickson focuses solely on the competency hearing and contends that because 

the court asked JS only about her last birthday, her sixth birthday, and the previous 

Christmas, the testimony failed to establish that she had the capacity to remember the 

events of 2007 and 2008.  However, we may examine the entire record when a 

competency determination is appealed.  State v. Woods, 154 Wn.2d 613, 617, 114 

P.3d 1174 (2005).  The record as a whole establishes that JS could recollect the period 

                                            -14- 

65935-9-I/15

of time that she lived at Erickson's house and the sexual contact with him.  The court's 

decision does not constitute a manifest abuse of discretion.

       Erickson also claims the court erroneously ruled that JS would be allowed to 

hold a doll while she testified.  But the record does not indicate whether JS testified 

while holding a doll or any other object.  Even if she did, in light of JS's age and the fact 

that it was not mentioned during her testimony, we cannot say that the court's ruling 

amounted to an abuse of discretion.  See State v. Hakimi, 124 Wn. App. 15, 98 P.3d 

809 (2004)

       Erickson also raises numerous additional claims that involve facts outside of the 

trial record.  These claims cannot be reviewed on direct appeal.  See State v. 

McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).  The appropriate means of 

raising these claims is through a personal restraint petition.  McFarland, 127 Wn.2d at 

338.

       We affirm Erickson's conviction.  We remand to strike that portion of community 

custody condition 22, which prohibits the purchase and possession of alcohol.  We 

remand to strike community custody condition 23 regarding Internet access in its 

entirety.

WE CONCUR:

                                            -15- 

65935-9-I/16

                                            -16-