Division 1 found the Trial Court here gave a very erroneous limiting instruction on how a jury was to regard 404(b) evidence of ‘other bad acts’. The instruction, propounded by the State prosecutor, inappropriately allowed, almost directed the jury to consider ‘propensity evidence’ in determining whether the State proved the elements of the crime. Propensity evidence is ‘you are a bad person, therefore you must have a done the bad act charged’.
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.” However, such evidence may be admissible for “other purposes” such as “motive” which “goes beyond gain and can demonstrate an impulse, desire or any other moving power which causes an individual to act.” State v. Fuller, 169 Wn. App. 797, 829 (2012). Another exception to the general rule of inadmissibility is when there is a “common scheme or plan” in which “an individual devices a plan and uses it repeatedly to perpetuate separate but similar crimes.” State v. Gresham 173 Wn. 2d 405, 421-422 (2012.)
Two alleged victims (“V”) came forward, complaining Mr. Villa fondled them in a way that had some similarities. Both were church friends of Mr. Villa’s. Two counts involved V #1, in years 2008 and 2011. A third count involved V #2, covering a time span of 2012 through 2015.
At a pre trial hearing, the State moved under ER 404(b) to “use the evidence that will be admitted throughout the trial as it relates to each count against each victim…as evidence of 404(b) under a common scheme or plan” and “to show motive, since the State is having to prove in this case that the touching was done for sexual qualification purposes.” ‘Common scheme or plan’ and ‘motive’ are exceptions to the general rule of inadmissibility of a defendant’s prior bad acts.
The defense moved to ‘sever’ (try separately) the various counts. That motion was denied. The State’s motion to allow other bad acts to be admitted was granted. The defense then requested a “limiting instruction”. The State agreed to this request.
At trial, the State played Mr. Villa’s audio recordings of a conversation with an investigating detective, wherein he was vague about his interactions with V #1 and V #2. Mr. Villa testified in the defense case that he “did not remember” touching the V’s in a sexual manner and denied doing so. He explained that his apology to them at church was not an admission, but rather “seeking their forgiveness and reconciliation” as part of “our own practice and faith” because the V’s “perceived I did something wrong.” After the State and defense rested, the prosecutor submitted the below limiting instruction:
Certain evidence has been admitted in this case for specific purposes, including evidence related to the defendant’s motive and/or common scheme or plan. This evidence consists of testimony from M.J.C. and J.P., concerning incidents alleged to have occurred between 2008 and 2015.
This evidence and testimony may be considered by you for purposes of assessing the credibility of the witnesses, assessing whether the State has proven the elements of the crimes charged, and also for assessing the defendant’s motive and/or common scheme or plan.
Any evaluation of the evidence during your deliberations must be consistent with instructions.
Defense counsel only questioned the instruction’s reference to “motive”. The Trial Court clarified that its pretrial ruling on admissibility did apply to motive. The court then e-mailed the final instructions to the parties, including the limiting instruction. Defense counsel replied by email, “Looks to comply with what the court stated.”
Division 1 found the above limiting instruction “egregiously defective” [pg. 5], then held “instructing the jury to use evidence of the defendant’s other crimes, wrongs, or acts to assess whether the State has satisfied the multiple “elements” of the multiple “crimes” is…instructing the jury to determine whether the defendant has a particular character and has acted in conformity with that character. Additional error was recognized in the instruction, largely that the jury’s evaluation of this evidence during deliberation must be consistent with the instruction [emphasis: the Courts pg 16].
The State argued on appeal to Division 1 that the defense waived any challenge to the limiting instruction or ‘invited’ the error. Division 1 reminded the State that it agreed to a limiting instruction, propounded one, and the Trial Court accepted the instruction the State tendured. Division 1 held the Trial Court had an independent duty to correctly instruct the jury on the proper use of ER 404(b) evidence.
All counts reversed! The State will be very cautious in how it intends to use other bad acts against Mr. Villa on retrial.