Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40884-8-II

                             Respondent,

       v.

M.B.J.,?                                                   UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.   --    M.B.J. appeals his four adjudications of first degree rape of a 

child, contending that the trial court denied him a fair trial by admitting evidence of prior sexual 

abuse involving the same two victims.  Finding no reversible error, we affirm.

                                             Facts

       In March 2006, Julie Edwards moved from Missouri to Longview with four of her 

children; her mother, Nancy Smith; her sister, Suzan Jones; and Jones's 13-year-old son, M.B.J.  

Edwards brought her 13-year-old daughter, C.P., and three sons:  10-year-old Q.A.W., 9-year-old 

Q.I.W., and 8-year-old W.W.  Edwards stayed at the family's new house on Fir Street for about a 

? Under RAP 3.4, this court changes the title of the case to the juvenile's initials.  The opinion 
also uses initials for the juvenile victims to protect their confidentiality.  

No. 40884-8-II

month but then returned alone to Missouri.  

       Six months later, Edwards rejoined the family in Longview.  The extended family moved 

to several other houses before Edwards and her children moved to their own home.  In January 

2010, she overheard a heated telephone conversation between Q.I.W. and M.B.J.'s girlfriend.  

This conversation led to Q.I.W. and Q.A.W. alleging that their cousin, M.B.J., had sexually 

molested them.  

       The State charged M.B.J. in juvenile court with two counts of first degree rape of a child 

involving Q.A.W. and two additional counts involving Q.I.W.  Before the fact-finding hearing 

began, defense counsel moved to prohibit the State from asking about prior sexual abuse that 

M.B.J. allegedly inflicted on the boys in Missouri, arguing that this prior bad act evidence was 

inadmissible under ER 404(b).  The State responded that the Missouri evidence was admissible 

under the res gestae rule to show how the abuse began and to explain the relationship between the 

parties.  When the court asked about admissibility to show a common scheme or plan, the State 

asserted that the Missouri evidence would show the beginning of a common scheme or plan of 

sexual misconduct that continued throughout the cousins' relationship.  The defense argued that 

the prejudicial effect of this evidence outweighed its probative value, but the court ruled that 

questioning about how the abuse started in Missouri was relevant to "explain the relationship

between the parties and explain the event."  1A Report of Proceedings (RP) at 15.  

       Q.A.W. testified that the molestation began when he was 10 and the cousins lived in 

Missouri.  When Q.A.W. and M.B.J. were on the bed upstairs, M.B.J. raped him anally while 

W.W. played a video game in the same room.  Q.A.W. said this happened six or seven times in 

Missouri and that M.B.J. called the sex "Yahtze."  1A RP at 26.  Q.A.W. added that he saw 

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M.B.J. do the same thing to Q.I.W. in Missouri and that M.B.J. had the two brothers perform oral 

sex on him more than once in Missouri.  

       Q.A.W. further testified that once the family moved to Longview, the "same routine"

happened in M.B.J.'s attic bedroom on Fir Street.  1A RP at 36.  After he and his brother went to 

the attic to play video games, M.B.J. anally raped them in front of each other and had the brothers 

perform oral sex on him.  Q.A.W. testified that the anal sex occurred six or seven times and the 

oral sex once or twice.  M.B.J. would initiate the sex by saying, "Let's play Yahtze," or "Let's do 

stuff."  1A RP at 37.  After sex, the boys would smoke cigarettes together.  Q.A.W. said that 

W.W. was sometimes present during the sex.  Q.A.W. explained that the molestation stopped 

when he was 12 because it hurt and he told M.B.J. to stop.  After Q.I.W. told Edwards about the 

abuse, she asked Q.A.W. if it had happened to him, and he told her about it because Q.I.W. 

wanted him to tell.  

       Q.I.W. testified that M.B.J. began molesting him when he was six years old and living in 

Missouri.  Q.I.W. said that M.B.J. raped him anally 10 times and forced him to perform oral sex 

on M.B.J. 8 times while they lived in Missouri.  Q.I.W. was nine years old when the family moved 

to Longview.  He said he would go up to the attic to play video games, and M.B.J. would come 

in and molest him.  Q.I.W. estimated that M.B.J. anally raped him five times and made him engage 

in oral sex twice after moving to Longview.  Q.I.W. added that M.B.J. called sex "Yahtze" and 

that this name began in Missouri.  1A RP at 121.  Q.I.W. said that the sex occurred once in front 

of Q.A.W. in Missouri, adding that he and Q.A.W. talked about having sex with M.B.J.  He said 

that the abuse occurred on Fir Street and an additional Longview address but stopped when 

M.B.J. got a girlfriend in February 2009.  Q.I.W. eventually told Edwards about the molestation 

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because he was tired of being teased about being bisexual.  

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       W.W. testified that when he was seven and the family lived in Missouri, he saw M.B.J. 

sucking Q.I.W.'s penis.  Once the family moved to Longview, he saw Q.I.W. and M.B.J. naked 

and moving under the bed covers.  W.W. testified that the attic contained a video game player, a 

bed, and a television.  

       Edwards testified that in January 2010, Q.I.W. was on the phone with M.B.J.'s girlfriend 

and overheard her call him a "faggot."  1B RP at 186.  Q.I.W. became upset and said that he was 

a faggot because M.B.J. had been molesting him since he was six years old.  When Edwards asked 

what was going on, Q.I.W. said that when the boys were little and playing video games, M.B.J. 

had done things he should not have done that he called Yahtze.  Q.I.W. told her about the anal 

sex, and Q.A.W. confirmed his brother's account.  

       Longview Police Detective Mark Langlois interviewed both Q.I.W. and Q.A.W.  Q.A.W. 

told the detective about the sex acts that M.B.J. performed in Missouri and said they happened in 

Longview "just like that."  1B RP at 237.  When the detective asked M.B.J. about the allegations, 

he admitted playing video games in the bedroom with his cousins in Missouri and then insisted 

that he was not gay.  He denied his cousins' allegations of sexual molestation.  

       Edwards's daughter testified for the defense.  She could not remember a television in the 

attic and was not aware of any sexual misconduct on M.B.J.'s part.  M.B.J.'s mother testified that 

there was no television in the attic.  His grandmother could not remember a television or game 

system in the attic and said the younger boys were not allowed up there.  M.B.J. again denied 

having sexual contact with his cousins and said there was no television or game system in the 

attic.  Although he admitted that there was a game system in Missouri, he denied playing video 

games with Q.A.W. or Q.I.W.  

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       The trial court found M.B.J. guilty as charged and entered written findings of fact and 

conclusions of law.  The trial court specifically found that Q.I.W. and Q.A.W. were credible 

witnesses and that M.B.J. was not.  The court also found that M.B.J. had been having sexual 

intercourse with both victims for a number of years.  

                                           Discussion

Evidence of Prior Sexual Misconduct

       On appeal, M.B.J. argues that his right to a fair trial was violated when the trial court 

admitted evidence of his prior sex acts with Q.A.W. and Q.I.W. in Missouri.  More specifically, 

he contends that the prejudicial effect of this evidence outweighed its probative value, thereby 

making it inadmissible under ER 403.  The State responds that the trial court properly admitted 

the Missouri evidence under ER 404(b) to show M.B.J.'s lustful disposition toward his cousins as 

well as a common scheme or plan.  

       We review the trial court's decision to admit evidence for an abuse of discretion.  State v. 

Thach, 126 Wn. App. 297, 310, 106 P.3d 782, review denied, 155 Wn.2d 1005 (2005).  An abuse 

of discretion occurs when the trial court bases its decision on untenable grounds or untenable 

reasons.  State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 

1008 (1998).  We apply an even more liberal standard when reviewing the admission of evidence 

in a bench trial, presuming that "the trial judge, knowing the applicable rules of evidence, will not 

consider matters which are inadmissible when making [her] findings."  State v. Miles, 77 Wn.2d 

593, 601, 464 P.2d 723 (1970).

       ER 404(b) forbids evidence of prior acts that tend to prove a defendant's propensity to 

commit a crime, but allows its admission for other limited purposes:

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       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.

       To admit evidence under ER 404(b), the trial court must identify the purpose for which 

the evidence is to be admitted, determine that it is relevant, and determine that its probative value 

outweighs its prejudicial effect.  State v. Jackson, 102 Wn.2d 689, 693-94, 689 P.2d 76 (1984).  

The admissibility of the evidence must meet the standard in ER 403, which provides that relevant 

evidence may be excluded if its probative value is substantially outweighed by the danger of unfair 

prejudice.  State v. Camarillo, 115 Wn.2d 60, 69-70, 794 P.2d 850 (1990).

       In sex offense prosecutions, the defendant's prior sexual offenses against the victim in the 

present case are routinely held admissible to show the defendant's lustful disposition toward that 

victim.  State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991); State v. Guzman, 119 Wn. 

App. 176, 182, 79 P.3d 990 (2003), review denied, 151 Wn.2d 1036 (2004).  The Washington 

Supreme Court found evidence of additional sexual misconduct toward the same victim 

admissible in Camarillo, recognizing that "this court has 'invoked an exception in similar cases to 

permit evidence of collateral sexual misconduct when it shows a lustful disposition directed 

toward the offended (victim).'"  115 Wn.2d at 70 (quoting State v. Ferguson, 100 Wn.2d 131, 

133-34, 667 P.2d 68 (1993)).  When considering lustful disposition, it is important that the prior 

conduct reveals a sexual desire for that particular victim.  Guzman, 119 Wn. App. at 182.  Such 

evidence makes it more probable that the defendant committed the offense charged.  State v. 

Thorne, 43 Wn.2d 47, 60, 260 P.2d 331 (1953).

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       Here, the trial court found the Missouri misconduct admissible to help explain the history 

and relationship between the cousins.  The court did not expressly refer to this as evidence of 

M.B.J.'s lustful disposition, but it clearly was admissible as such.1 Although the trial court also 

did not weigh the probative value of this evidence against its prejudicial effect on the record, the 

need for such balancing is diminished in a bench trial.  We presume that a trial judge considers 

evidence only for its proper purpose.  See State v. Bell, 59 Wn.2d 338, 360, 368 P.2d 177, cert. 

denied, 371 U.S. 818 (1962).  Moreover, the danger of prejudice is reduced in a bench trial 

because a trial judge is in a better position than jurors to identify and focus on the probative 

quality of evidence and disregard its prejudicial aspects.  State v. Jenkins, 53 Wn. App. 228, 236-

37, 766 P.2d 499, review denied, 112 Wn.2d 1016 (1989); see also State v. Majors, 82 Wn. App. 

843, 848-49, 919 P.2d 1258 (1996) (in bench trial, court is presumed to give evidence its proper 

weight), review denied, 130 Wn.2d 1024 (1997).  

       The State also argues that the trial court properly admitted the Missouri evidence under 

ER 404(b) to show a common scheme or plan.  Evidence of prior sexual acts against persons 

other than the victim are admissible under this theory if (1) the State can show the prior acts by a 

preponderance of the evidence, (2) the evidence is admitted for the purpose of showing a 

common plan or scheme, (3) the evidence is relevant to prove an element of the crime charged, 

and (4) the evidence is more probative than prejudicial.  State v. Kennealy, 151 Wn. App. 861, 

886, 214 P.3d 200 (2009), review denied, 168 Wn.2d 1012 (2010).  "[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."  State v. Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995).  

1 We may affirm the trial court on any basis the record supports.  State v. Avery, 103 Wn. App. 
527, 537, 13 P.3d 226 (2000).  
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No. 40884-8-II

Prior similar acts of sexual abuse can be very probative of a common scheme or plan, which in 

turn is relevant to disproving a defendant's denial of the current acts.  State v. Krause, 82 Wn. 

App. 688, 695-96, 919 P.2d 123 (1996), review denied, 131 Wn.2d 1007 (1997).  

       Here, both victims testified that M.B.J. committed acts of sexual abuse against them in 

Missouri that were similar to those that allegedly occurred in Washington, with M.B.J. referring 

to the acts in both states as playing Yahtze.  The victims alleged that the abuse occurred in 

Missouri and Washington when the cousins were in a bedroom playing video games or watching 

television.  Q.A.W. also described the similar patterns of abuse to Detective Langlois.  The 

similarity between the acts in Missouri and Washington with regard to both victims made the 

Missouri allegations cross admissible to prove a common scheme or plan on M.B.J.'s part.

       Any error that occurred when the trial court failed to expressly address each ER 404(b) 

factor before allowing testimony about the Missouri acts was          harmless because of the 

considerable additional evidence supporting the trial court's findings.  See Miles, 77 Wn.2d at 601 

(new trial ordinarily will not be granted for error in the admission of evidence during a bench trial 

if there remains substantial admissible evidence to otherwise support the trial court's findings).  

The trial court made unchallenged findings that Q.A.W. and Q.I.W. were credible witnesses and 

that it believed their testimony.  Their description of the abuse that occurred in Washington 

provides substantial evidence to support the trial court's findings and verdict.  

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       Affirmed.  

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so 

ordered.

                                                 QUINN-BRINTNALL, J.
We concur:

ARMSTRONG, J.

PENOYAR, C.J.

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