State v. DeVincentis , 150 Wash. 2d 11 ( 2003 )

Chambers, J.

(concurring) — I concur with the result reached by the majority. I write separately because I believe that when this court chose the words “markedly similar acts of misconduct against similar victims under similar circumstances,” State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995), we were requiring something more than features common to most crimes of the nature charged. I therefore agree with the analysis of State v. Dewey, 93 Wn. App. 50, 966 P.2d 414 (1998). I do not join the majority in its departure from the limiting principle articulated in Dewey in this context.

I agree with the majority that the trial court must always begin with a presumption that evidence of prior bad acts is inadmissible. Majority at 17. As the majority properly notes, our evidentiary rules prohibit admission of evidence to prove a defendant has a criminal propensity. ER 404(a); majority at 17. 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 set forth in ER 404(b). E.g., Lough, 125 Wn.2d at 853; majority at 17. ER 404(b) does not permit evidence of prior misconduct to show that the defendant is a “ ‘criminal type’ ” and is likely to have committed the crime for which he or she is presently charged. Lough, 125 Wn.2d at 853.

The exception for the “common scheme or plan” differs from the exception for “modus operandi.” Evidence of a unique modus operandi is used to prove the identity of the perpetrator. Thus, evidence of modus operandi must be sufficiently unique and atypical of the way the crime is traditionally committed to serve as a “signature” and be probative of whether a crime was committed by a particular person.

When identity is not the issue, as here, and whether or not the crime was committed is an issue, then the “common plan or scheme” is particularly relevant. Cf. Lough, 125 Wn.2d at 852. The evidence sought to be admitted must show such “markedly similar acts of misconduct” as to prove a “common plan.” The heart of the controversy involves the meaning of the words “common plan.”

The Court of Appeals was correct in Dewey when it concluded that the common features required by Lough to establish a plan must be features other than those common to most crimes of the same nature. Otherwise, all evidence of other crimes of the same nature would be admissible to show a plan. Dewey, 93 Wn. App. at 57.

In Lough this court set forth the trial court’s oral ruling. There the superior court judge ruled:

“[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.”

Lough, 125 Wn.2d at 853-54 (quoting Report of Proceedings (Sept. 10, 1990) at 3). In Lough, the trial court found sufficiently “unique features in common between the offenses” to admit evidence of the prior bad acts. We substantially agreed and held 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.” Id. at 852.

The “unique” or “markedly similar” circumstances do not need to be so distinctive as to be “signature like” because identity is not necessarily the issue. However, the markedly similar circumstances must be very particularized so as to identify a plan instead of a person. Lough, 125 Wn.2d at 860. In Lough, the particularized facts which satisfied the requirement of markedly similar acts of misconduct against similar victims under similar circumstances was the testimony of four women who testified that the defendant surreptitiously drugged and then raped them while they were dazed from the drug.⁴

While I would articulate the rule differently, I agree that in the case before us there are sufficiently particularized facts which satisfy the requirement of markedly similar acts of misconduct against similar victims under similar circumstances to establish a common plan. Here, in the summer of 1998, K.S. was 12 years old. Louis DeVincentis hired her to mow his lawn and clean his house. He was continually in a state of near-undress, wearing only g-string or bikini underwear. He gradually escalated the situation by requesting massages, offering massages, disrobing himself, and suggesting she disrobe. The situations culminated in genital contact and masturbation. DeVincentis instructed K.S. not to tell anyone.

This was not the first time DeVincentis had similarly groomed and molested a child. In 1983, he had access to a 10 year old friend of his daughter, V.C. There was evidence that he regularly appeared nearly naked in her presence, that he and V.C. would massage each other, and that V.C. was fully naked with him in his bedroom where he would ask the young girl for back massages. V.C. also testified that she had uncertain memories of masturbation and oral intercourse with DeVincentis, and that he told her not to tell anyone. The particular facts are unique and reveal a markedly similar plan to groom victims of a particular age in a particular manner to perform particular sexual acts.

In its written findings, the trial court noted the many similarities between the 1998 and 1983 events. Such facts are particularized and satisfy the requirement of markedly similar acts of misconduct against similar victims under similar circumstances to identify a plan. Further, they share common features that are not common to most acts of indecent liberties. I would affirm, and therefore I concur.

Sanders, J., concurs with Chambers, J.

4 Lough was prosecuted for rape, burglary, and indecent liberties. The State sought to admit evidence he had used his training and position as a paramedic to drug and rape many women over nearly a decade. Lough, 125 Wn.2d 847.