State Of Washington, V. Edwin Graves Maeurer

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 81557-1-I
v.
UNPUBLISHED OPINION
EDWIN GRAVES MAEURER,
Appellant.
DWYER, J. — Edwin Maeurer appeals from his two convictions of child
molestation in the third degree. Maeurer asserts that the trial court erred by
admitting certain evidence in violation of ER 404(b). Additionally, Maeurer
contends that his defense attorney provided ineffective assistance by not
objecting to the exclusion of certain testimony. Finally, Maeurer asserts that
cumulative error deprived him of a fair trial. Because Maeurer fails to establish
an entitlement to relief on any of these claims, we affirm.
I
Edwin Maeurer and Sunshine Ward were in a relationship and lived in a
house together. In 2014, Ward’s 14 year old daughter, A.E., moved into the
house. Between 2014 and 2016, Maeurer made numerous sexual advances
toward A.E.
The first time that A.E. recalled Maeurer touching her inappropriately was
sometime in 2014 when A.E. was learning how to drive. On this occasion, A.E.
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was alone in a vehicle with Maeurer. While A.E. was sitting in the passenger
seat of the vehicle, Maeurer performed a “random brake check,” reached toward
A.E., and grabbed her breasts. Thereafter, Maeurer continued to occasionally
perform “random brake checks” and grab A.E.’s breasts when he drove with A.E.
A.E. also recalled that Maeurer touched her inappropriately sometime in
2015. A.E. had “lower back problems” and Maeurer offered to give her a
“massage.” Maeurer unbuttoned A.E.’s pants and removed her underwear.
While A.E. was laying on her stomach, Maeurer “rubbed [her] butt and continued
to get lower and go towards [her] vagina.” However, A.E. repositioned her body
such that “he wouldn’t be able to touch” her vagina. Maeurer “asked what was
wrong” and A.E. “just turned away and covered [her]self up.” Maeurer then
stopped touching A.E. on this occasion.
Then, for several months in 2016, Maeurer gave A.E. massages
approximately once per week. A.E. recalled that, for several of these massages,
Maeurer “grab[bed] a towel from his bathroom and baby oil.” Maeurer then
placed the towel on his bed and A.E. laid “face down” on the towel. While A.E.
laid down, Maeurer unhooked her bra and removed her pants and underwear.
Maeurer “would mainly play with [A.E.’s] butt,” but he also attempted to touch her
breasts and vagina. During these massages, A.E. “could feel something that
wasn’t his hand or a normal body part touching [her] butt.” A.E. believed that
Maeurer touched her with his exposed penis.
Additionally, on more than one occasion, Maeurer asked A.E. to engage in
sexual intercourse with him. According to A.E., Maeurer offered her money and
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said that he would pay her to “put it in” her. A.E. understood this to mean that
Maeurer wanted to put his penis inside of her.
One day, Maeurer gave A.E. a dildo. Approximately 20 minutes after
giving A.E. the dildo, Maeurer entered her bedroom and asked whether she
“needed help using it.”
Furthermore, according to A.E., Maeurer frequently made comments
about how her “breasts and . . . butt would look in . . . certain pieces of clothing.”
A.E.’s friend, Katelyn Howard, also recalled hearing Maeurer compare A.E.’s
body to Ward’s body. Similarly, Howard’s mother heard Maeurer compare A.E.’s
breasts to Ward’s breasts and make “jokes about how she look[ed] like her
mother, but a younger version.”
While A.E. was living with Maeurer and Ward, A.E.’s brother found a
photograph on Maeurer’s cell phone that depicted Ward with Maeurer’s semen
on her face. A.E.’s brother, under the mistaken belief that this photograph
depicted A.E. instead of Ward, informed his father and stepmother about the
photograph.
On A.E.’s 16th birthday, A.E.’s father asked her about the photograph.
Although the photograph did not depict A.E., she informed her father and
stepmother that Maeurer had been touching her inappropriately.
The State charged Maeurer with two counts of child molestation in the
third degree.1 Following a jury trial, Maeurer was found guilty as charged. The
1 In the information, each of the counts contained the same language, which provided:
On or about from the 31st day of July, 2014 to the 30th day of July 2016, in the
County of Whatcom, State of Washington, the above-named Defendant, being at
least forty-eight (48) months older than A.E., had sexual contact with A.E., who
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trial court imposed a standard range sentence of 60 months of incarceration for
each count, to run concurrently.
Maeurer appeals.
II
Maeurer contends that the trial court erred by admitting testimony
regarding comments that Maeurer made to A.E. about her body. According to
Maeurer, the trial court should have excluded this testimony under ER 404(b).
We disagree.
A
When the admissibility of evidence is challenged by invocation of ER
404(b), we review a trial court’s ruling to admit or exclude the evidence for abuse
of discretion. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009). A trial
court abuses its discretion when its decision is manifestly unreasonable or based
on untenable grounds or reasons. State v. Taylor, 193 Wn.2d 691, 697, 444
P.3d 1194 (2019). Additionally, we may affirm the trial court’s ruling “on any
ground within the pleadings and proof.” State v. Michielli, 132 Wn.2d 229, 242,
937 P.2d 587 (1997).
B
As a general rule, “[a]ll relevant evidence is admissible.” ER 402. One
exception to this general rule is provided by ER 404(b), which states:
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
was at least fourteen (14) years old but less than sixteen (16) years old, and not
married to the defendant; contrary to Revised Code of Washington 9A.44.089,
which violation is a class C felony.
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as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
In determining whether evidence of other misconduct is admissible under
ER 404(b),
the trial court must (1) find by a preponderance of the evidence that
the misconduct occurred, (2) identify the purpose for which the
evidence is sought to be introduced, (3) determine whether the
evidence is relevant to prove an element of the crime charged, and
(4) weigh the probative value against the prejudicial effect.
State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
“This analysis must be conducted on the record, and if the evidence is
admitted, a limiting instruction is required.” State v. Arredondo, 188 Wn.2d 244,
257, 394 P.3d 348 (2017).
C
Prior to trial, Maeurer filed a motion in limine to exclude testimony from
Howard “about a comment Edwin Maeurer allegedly made [to A.E.] to the effect
of you are a beautiful young woman, and you look like your mother.” Maeurer
asserted that this testimony should be excluded under ER 404(b). The trial court
denied this motion.
Additionally, on the day that the trial commenced, the State called A.E. to
testify, outside the presence of the jury, as an offer of proof. A.E. testified that
Maeurer would frequently “talk about [her] breasts, [her] butt, [and] how [she]
would look in some clothing.” The State sought to obtain a ruling from the trial
court authorizing A.E. to testify about the comments that Maeurer had made
about her body. During the hearing on the offer of proof, Maeurer’s attorney
argued, among other things, that the testimony regarding these comments
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should be excluded under ER 404(b). The trial court ruled that the testimony was
admissible as evidence of Maeurer’s “lustful disposition” toward A.E.
D
There are three reasons why the trial court did not err by ruling that the
testimony in question was admissible. First, our Supreme Court “has
consistently recognized that evidence of collateral sexual misconduct may be
admitted under ER 404(b) when it shows the defendant’s lustful disposition
directed toward the offended [person].” State v. Ray, 116 Wn.2d 531, 547, 806
P.2d 1220 (1991) (citing State v. Camarillo, 115 Wn.2d 60, 70, 794 P.2d 850(1990); State v. Ferguson, 100 Wn.2d 131, 133-34, 667 P.2d 68 (1983)). “‘The
important thing is whether it can be said that it evidences a sexual desire for the
particular [person].’” Ray, 116 Wn.2d at 547 (emphasis added) (quoting
Ferguson, 100 Wn.2d at 134). Moreover, “‘[t]he kind of conduct receivable to
prove this desire at such . . . subsequent time is whatever would naturally be
interpretable as the expression of sexual desire.’” Ray, 116 Wn.2d at 547(second alteration in original) (internal quotation marks omitted) (quoting
Ferguson, 100 Wn.2d at 134).
The comments that Maeurer made to A.E. about her body tended to prove
that Maeurer had a lustful disposition toward A.E. Indeed, these comments
tended to show that Maeurer was sexually attracted to A.E. Therefore, the trial
court did not err by ruling that the testimony regarding these comments was
admissible to demonstrate Maeurer’s lustful disposition toward A.E.
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Next, “evidence that completes the story of the crime charged or provides
immediate context for events close in both time and place to that crime is not
subject to the requirements of ER 404(b).” State v. Sullivan, 18 Wn. App. 2d
225, 237, 491 P.3d 176, 183 (2021). Indeed, “[s]uch evidence is not of other
misconduct of the type addressed in ER 404(b).” Sullivan, 18 Wn. App. 2d at
237 (citing State v. Grier, 168 Wn. App. 635, 647, 278 P.3d 225 (2012)). Rather,
evidence of this kind “‘more appropriately falls within ER 401’s definition of
“relevant” evidence, which is generally admissible under ER 402, rather than an
exception to propensity evidence under ER 404(b).’” Sullivan, 18 Wn. App. 2d at
236 (internal quotation marks omitted) (quoting State v. Dillon, 12 Wn. App. 2d
133, 148, 456 P.3d 1199, review denied, 195 Wn.2d 1022 (2020)).
The testimony regarding the comments that Maeurer made to A.E. about
her body completed the story of the crimes charged. Indeed, Maeurer was
charged with violating RCW 9A.44.089(1), which provides:
A person is guilty of child molestation in the third degree when the
person has, or knowingly causes another person under the age of
eighteen to have, sexual contact with another who is at least
fourteen years old but less than sixteen years old and the
perpetrator is at least forty-eight months older than the victim.
(Emphasis added.)
Notably, “‘[s]exual contact’ means any touching of the sexual or other
intimate parts of a person done for the purpose of gratifying sexual desire of
either party or a third party.” RCW 9A.44.010(2) (emphasis added).
The comments that Maeurer made to A.E. about her body provided
significant context to complete the story of the crimes charged. In particular,
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these comments tended to show that Maeurer touched A.E.’s intimate parts for
the purpose of gratifying a sexual desire. At trial, Maeurer denied ever touching
A.E. in a sexual manner. According to Maeurer, he massaged A.E.’s shoulders
on one occasion, but only while she was clothed and Ward was present. The
challenged testimony supported both the State’s theory that Maeurer had
improperly touched A.E. and its theory that he did so to gratify a sexual desire.
Finally, “ER 404(b) is not designed ‘to deprive the State of relevant
evidence necessary to establish an essential element of its case,’ but rather to
prevent the State from suggesting that a defendant is guilty because he or she is
a criminal-type person who would be likely to commit the crime charged.” State
v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007) (quoting State v. Lough,
125 Wn.2d 847, 859, 889 P.2d 487 (1995)). After all, “[i]t is a fundamental
precept of criminal law that the prosecution must prove every element of the
crime charged beyond a reasonable doubt.” State v. Brown, 147 Wn.2d 330,
339, 58 P.3d 889 (2002). The State bore the burden to prove that Maeurer had
“sexual contact” with A.E. RCW 9A.44.089(1). In order to establish this element,
the State was required to show that Maeurer touched A.E.’s intimate parts “for
the purpose of gratifying sexual desire.” RCW 9A.44.010(2). The comments that
Maeurer made to A.E. about her body tended to show that, when Maeurer
touched A.E., he did so in order to gratify a sexual desire.2
2Maeurer contends that the testimony regarding the comments that he made to A.E.
about her body “was not admissible to prove the element of sexual gratification because that
element was not disputed at trial.” Br. of Appellant at 11. However, before Maeurer testified, his
counsel moved for a directed verdict, asserting that, with regard to one of the counts charged,
there was insufficient evidence to support a jury finding that Maeurer touched A.E. for the
purpose of gratifying a sexual desire. Therefore, whether Maeurer touched A.E. to gratify a
sexual desire was, in fact, in dispute.
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Accordingly, Maeurer’s assignment of error fails.
III
Maeurer next contends that his trial attorney provided ineffective
assistance of counsel by not objecting to testimony describing a photograph in
which Ward was depicted with Maeurer’s semen on her face. According to
Maeurer, his trial attorney should have objected to this testimony because it was
irrelevant and unduly prejudicial. Because defense counsel’s decision to not
object to this testimony can be described as a legitimate trial strategy, we
disagree.
The defendant bears the burden to prove ineffective assistance of
counsel. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To
meet this burden, the defendant must establish that
(1) defense counsel’s representation was deficient, i.e., it fell below
an objective standard of reasonableness based on consideration of
all the circumstances; and (2) defense counsel’s deficient
representation prejudiced the defendant, i.e., there is a reasonable
probability that, except for counsel’s unprofessional errors, the
result of the proceeding would have been different.
McFarland, 127 Wn.2d at 334-35.
“To combat the biases of hindsight, our scrutiny of counsel’s performance
is highly deferential and we strongly presume reasonableness.” In re Pers.
Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). “For many reasons
. . . the choice of trial tactics, the action to be taken or avoided, and the
methodology to be employed must rest in the attorney’s judgment.” State
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v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967). “There are countless ways to
provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.” Strickland
v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
“When counsel’s conduct can be characterized as legitimate trial strategy or
tactics, performance is not deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215
P.3d 177 (2009).
During opening argument, Maeurer’s counsel emphasized the sexually
explicit photograph depicting Ward in order to demonstrate that the investigation
of Maeurer was rushed and based on a mistaken belief:
Good afternoon, ladies and gentlemen of the jury. I think it’s
important to start with how this case was generated. The State
made reference to a picture that the brother of [A.E.] found of an
explicit nature of [A.E.]’s mother, Sunny, on the phone of Mr.
Maeurer, and Mr. Maeurer and Sunny Ward were in a dating
relationship. The picture was on Mr. Maeurer’s phone. [A.E.]’s
brother is going through the phone, sees the picture, remarkably
somehow confuses it with his sister, who is 15 years old, and his
mom is in her 30s.
Based on that mistaken belief, I expect the testimony to
show, the evidence to show that [A.E.] was taken to her therapist,
and I’ll briefly mention that I expect the evidence to show that [A.E.]
was already in therapy previous to 2014. Goes to the therapist.
Before she goes to the therapist, actually, she says that’s not me.
That picture is not me, but she makes a disclosure, what can be
characterized as a disclosure. Goes to the therapist. The therapist
sends a request to a [child protective services] worker.
What I expect the evidence to show based on that is the
CPS worker interviews [A.E.], but doesn’t follow proper protocol.
This also occurs in front of Officer Brown, Everson Police
Department. Officer Brown -- to say it wasn’t an investigation is an
understatement. Officer Brown did absolutely nothing but listen to
the allegation.
He immediately goes and makes an arrest. He did not talk
or interview, for example, [A.E.]’s mother, who was there during this
period of time, Sunny. He did not interview [A.E.]’s brother . . . ; did
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not talk to the therapist; did nothing after maybe from the time the
report I expect hit his desk or the call, to the time arrest is made,
four hours. That’s it.
I also expect the testimony or the evidence to show that at
least one event that was described on August the 4th, which is the
date that all of this, all of these things happened, August 4th, 2016,
when Mr. Maeurer is arrested by Officer Brown after not doing an
investigation, I expect a further incident between [A.E.] and Officer
Brown where she says one of these things could have been a
dream. I don’t know. It could have been a nightmare, but at that
point, see, the problem is it’s too late, because Edwin Maeurer is
already arrested. There’s no take-backs for that.
Thus, defense counsel made use of the disputed evidence to further a
legitimate trial strategy. Counsel’s representation has, therefore, not been shown
to be deficient. Because both prongs of the ineffective assistance of counsel test
must be met for appellate relief to be warranted, the failure to demonstrate either
prong ends our inquiry.3 State v. Classen, 4 Wn. App. 2d 520, 535, 422 P.3d
489 (2018).
Affirmed.
WE CONCUR:
3 Maeurer also asserts that cumulative error deprived him of a fair trial. “The cumulative
error doctrine applies when several trial errors occurred and none alone warrants reversal but the
combined errors effectively denied the defendant a fair trial.” State v. Jackson, 150 Wn. App.
877, 889, 209 P.3d 553 (2009). Because no trial errors occurred, there was no cumulative error.
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