State Of Washington, V. Rene Phillip Dallas

        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                               )           No. 81094-4-I
                                                    )
                         Respondent,                )           DIVISION ONE
                                                    )
                 v.                                 )           UNPUBLISHED OPINION
                                                    )
 RENE PHILLIP DALLAS,                               )
                                                    )
                         Appellant.                 )
                                                    )

       HAZELRIGG, J. — Rene P. Dallas seeks reversal of his convictions for child

molestation in the first degree and rape of a child in the first degree. He argues

that the trial court erred in allowing testimony about an uncharged act as evidence

of a lustful disposition, and he contends that the evidence presented at trial was

insufficient to prove the charges beyond a reasonable doubt. Because the trial

court did not abuse its discretion in admitting evidence of the prior act and the State

produced sufficient evidence to support each conviction, we affirm.


                                            FACTS

       A.L.M. was born in April 1996 and has lived in Whatcom County all her life.

A.L.M.’s mother, Monique Lacasse, began dating Dallas when A.L.M. was about

a year old. Dallas and Lacasse had two children together, N.D. and A.D. In 2003,

when A.L.M. was in second grade and Lacasse was pregnant with A.D., A.L.M.,

Lacasse, N.D., and Dallas moved into a house in Custer, Washington. A.L.M. had



  Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 81094-4-I/2


her own room in the three-bedroom house. Although Dallas and Lacasse shared

a room, Dallas slept on the living room couch most nights. N.D. and A.D. also

shared a room, but they often slept with Lacasse. A.L.M. typically spent weekends

at her grandmother’s house or friends’ houses. Lacasse and Dallas broke up in

January 2008, and he moved out of the Custer house.

       Ten years later, in January 2018, A.L.M. reported that Dallas had sexually

abused her when she was 11 years old. Dallas was arrested and charged with

child molestation in the first degree and four counts of rape of a child in the first

degree for events alleged to have occurred on or about January 6, 2007 through

January 9, 2008.

       Before trial, Dallas moved in limine to exclude testimony regarding an

alleged uncharged incident in which Lacasse saw him looking in the window of

A.L.M.’s bedroom while she was getting dressed. He argued that testimony about

the incident was not admissible under ER 404(b) and, even if admissible, that it

should be excluded because it was more prejudicial than probative. The State

argued that the testimony would be admissible as evidence of a lustful disposition.

The court heard oral argument on the motion but reserved ruling until it could hear

an offer of proof from the witness.

       The next day, the court heard further argument from the parties on the case

law regarding evidence of a lustful disposition. Defense counsel argued that the

evidence was potentially relevant only to the child molestation charge and that it

was far more prejudicial than probative. The court again reserved ruling, stating

that it wanted to hear from the witness outside the jury’s presence before deciding




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the issue. Defense counsel expressed confusion as to why the court needed to

hear the testimony “because we generally agree as to what the facts of that

allegation would be.” The court stated,

      You may agree to what those facts are but they are not in front of
      [the] court yet. It has to be presented to me. If you guys want to sign
      a stipulation as to facts and present that to me, now I may have some
      basis for making that decision. . . . [U]nder the circumstances, I have
      to hear what she ha[s] to say. I have to know that to know whether
      or not there is really a grounds for it being included as part of the
      evidence that the jury will hear, so I need to hear from the witness.

      The court heard an offer of proof from Lacasse before she testified in front

of the jury. She stated that she kicked Dallas out of the house in January 2008

and described the circumstances that led to him moving out. One evening, A.L.M.

was bathing after a nighttime soccer game. Lacasse saw A.L.M. walk from the

bathroom to her bedroom wearing only a towel. Soon after, Dallas went to the

garage, and Lacasse assumed he was going to smoke a cigarette. But she noticed

that he put his shoes on, which he did not usually do when he went into the garage.

Lacasse “got a really sick feeling” and looked out the front door, triggering the

motion-sensor light. She saw Dallas standing on a white plastic chair, looking into

A.L.M.’s bedroom window. Lacasse “freaked out” and knocked on A.L.M.’s door

to ask if she was getting dressed. A.L.M. confirmed that she was, and Lacasse

“started going crazy.” She loaded the children into the van, but Dallas blocked the

exit with his car. Lacasse ran over Christmas decorations in the yard and drove

to a gas station. She did not report the incident to law enforcement, but stated, “I

parked in a handicapped spot because I hoped that a sheriff would pull up and talk

to me.”




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       After Lacasse testified, the court allowed further argument on the issue.

Defense counsel argued that the testimony was “far more prejudicial than it is

probative” and that there was nothing to indicate that the act was of a sexual

nature. The State argued that the evidence demonstrated a sexual proclivity

toward A.L.M. because Dallas “was looking in the window of an under-aged female

that was in the midst of changing her clothes, so, to say there was nothing sexual

about that is a pretty gross mischaracterization.” The State acknowledged that the

evidence was prejudicial, as the State’s evidence in a criminal case tends to be,

but argued that it was not overly prejudicial and the probative value of the evidence

was not outweighed by that prejudice.

       The court ruled that Lacasse’s testimony was admissible as evidence of

collateral sexual misconduct. The court then considered the prejudicial impact of

the evidence:

       Is it prejudicial? It’s as prejudicial as probative evidence might
       otherwise be and I think that the term, the language of art that’s often
       used is that probative evidence is, in fact, prejudicial if it tends to
       prove a thing to be true. I think the question that comes in is
       something that can be resolved by cross-examination. How does she
       know what he was observing? She can see where he was standing,
       she could see where he was looking, so, you know, she drew some
       inferences for that, and I think that’s something that can [be] sorted
       out in cross-examination[.] . . . It’s not being presented in order to say
       his behavior was in conformity because he was looking in the
       window. It’s to say that there is a lustful disposition and I think it
       comes down to cross-examination and who those jurors believe
       when testimony is presented to them, whether they believe Ms.
       Lacasse or not.

The court denied Dallas’ motion to exclude Lacasse’s testimony about the

uncharged incident.




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        At trial, A.L.M. testified that Dallas began sexually abusing her the summer

after she finished fifth grade, when she was about 11 years old. The first incident

occurred in late June 2007. A.L.M. awoke in the middle of the night to find Dallas

sitting on the side of her bed and touching her vulva.1 Her pajama pants were

pulled down to her knees. Although her room was dark, the bedroom door was

not fully closed, and she remembered seeing the outline of Dallas’ goatee and

glasses in the light from the hallway. She also smelled cigarette smoke. Dallas

was a heavy smoker. A.L.M. testified that the touching lasted less than a minute

after she woke up because she pulled back and Dallas left right away when he

realized she was awake. The following morning, A.L.M. tried to act like nothing

had happened. She did not tell anyone about the incident because she was

scared. The next week, A.L.M. again woke up in the night to find that her pajama

pants and underwear were pulled down and Dallas was rubbing her vulva. Like

the previous incident, Dallas left when he realized A.L.M. was awake.

        The third incident took place a few days before the Fourth of July 2007.

A.L.M. woke up in pain because Dallas was digitally penetrating her vagina. Her

pajama pants and underwear were pulled down, and Dallas was leaning over her,

closer than he had been the previous times. A.L.M. jerked away, and Dallas looked

flustered and left. The fourth instance occurred before A.D’s birthday in mid-July.

A.L.M. awoke with her pajamas, underwear, and blankets pulled down. Dallas was

leaning over her and digitally penetrating her vagina. He stopped when she moved

away. The fifth occasion that A.L.M. remembered happened before Christmas in


        1 Although A.L.M. described the area in her testimony as the surface of her vagina, it is
clear from context that she was referring to her vulva.


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the winter of 2007. She again woke up in pain because Dallas was digitally

penetrating her vagina. Although A.L.M. felt like she could not talk and could barely

move, she moved away from his hand and Dallas stopped.

       A.L.M. did not remember any other instances of Dallas touching her

inappropriately, but she testified that she woke up two other times with her pants

and underwear off. She was able to recognize Dallas each time because she saw

the silhouette of his glasses, goatee, and clothes in the light from the hallway and

smelled cigarette smoke.

       A.L.M. decided to report the abuse to law enforcement in 2018 because she

wanted to make sure Dallas would not do this to anyone else. She did not tell

anyone about the abuse as it was happening because she was scared that Dallas

was going to kill her and her family. Although Dallas never threatened her directly

while the abuse was occurring, A.L.M. testified that Dallas and Lacasse’s

relationship “g[o]t physical” almost every day and that Dallas “beat the crap out of

[her] mom in front of [her].” A.L.M. said that he threatened Lacasse with an axe

and “would threaten to run [them] off the road.” During the summer of 2007, A.L.M.

took melatonin supplements at night to help her sleep, explaining, “If I didn’t[,] I

would get up screaming and crying from my mom and him hurting her.”

       A.L.M. acknowledged that her mother did not pay much attention to her after

her siblings were born. The two tended to argue, and A.L.M. felt that Lacasse did

not spend time with her because “[s]he was always sad.” A.L.M. initially viewed

Dallas as a father figure when she was young, but they did not develop “a normal

daughter-dad relationship” and “didn’t interact.” She stated that he would never




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talk to her directly, and she avoided being around him because she was scared of

him. Although Dallas still did not interact with A.L.M. after the sexual abuse

occurred, he bought her Christmas presents for the first time that year.

       Lacasse also testified that Dallas treated A.L.M. differently than the other

children. She said that she “never really saw him . . . even acknowledge [A.L.M.’s]

existence,” that he did not seem to like her, and that he seemed resentful that she

was around. Lacasse indicated that, before January 2008, A.L.M. frequently

witnessed verbal arguments between Dallas and Lacasse and witnessed physical

altercations between them “at least every month.”

       Lacasse then testified in front of the jury about the incident that led to Dallas

moving out of the Custer house in January 2008. She and Dallas were in the living

room with N.D. and A.D. while A.L.M. was bathing after a late soccer game.

Lacasse saw A.L.M. walking down the hallway to her room wearing only a towel,

and then Dallas got up to go smoke. Lacasse noticed that Dallas’ shoes were

gone, which was unusual because normally he did not wear shoes when he would

smoke in the enclosed garage. She opened the front door to look outside, and the

motion-sensor light turned on. She saw Dallas standing on a plastic chair and

looking into A.L.M.’s bedroom window. He would not have been able to see into

the window from ground level. When the light came on, Dallas turned behind him

to look at the golf course parking lot, then turned back to face the window. Lacasse

started yelling and swearing at Dallas. He stumbled off the chair and said nothing

to her. Lacasse walked down the hall to A.L.M.’s room, knocked on the door, and

asked if she was getting dressed. A.L.M. said she was, and Lacasse “lost it.”




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       Lacasse testified that she did not report the incident to law enforcement,

explaining: “I felt like it would be my word against his and he was so manipulative

and I didn’t have that energy. I didn’t even know if it would be provable. I didn’t

know what to do.” She asked A.L.M. if anything else like that had happened to

her, and A.L.M. shook her head.          Lacasse maintained contact with Dallas

regarding N.D. and A.D. until 2010.

       A.L.M. first told Lacasse about the sexual abuse in 2016. During this

conversation, A.L.M. was “very hysterical [and] upset.” Lacasse did not make a

report to law enforcement at the time because A.L.M. did not want her to, but she

confronted Dallas. She said she never heard from him again after that. Lacasse

eventually went with A.L.M. to speak with law enforcement in 2018.

       After A.L.M. testified, the State moved to amend the information to conform

to her testimony, charging Dallas with two counts of child molestation in the first

degree and three counts of rape of a child in the first degree for events alleged to

have occurred on or about January 6, 2007 through January 9, 2008. The jury

found Dallas guilty on all counts. He appealed.


                                     ANALYSIS

I.     Evidence of Lustful Disposition

       Dallas contends that the trial court erred in admitting Lacasse’s testimony

that she had seen Dallas looking into A.L.M.’s bedroom window while she was

getting dressed. He argues that this ruling denied him a fair trial.

       A trial court’s interpretation of an evidentiary rule is a question of law that

we review de novo. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).



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But, so long as the trial court’s legal interpretation of an evidentiary rule is correct,

the court’s admission of evidence is reviewed for abuse of discretion. Id. Even if

the reviewing court disagrees with the trial court, we will not reverse a discretionary

decision unless it is “‘manifestly unreasonable or based on untenable grounds or

untenable reasons.’” State v. Dye, 178 Wn.2d 541, 548, 309 P.3d 1192 (2013)

(quoting In re Marriage of Littlefield, 133 Wn.2d 39, 46–47, 940 P.2d 1362 (1997)).

       “ER 404(b) prohibits a court from admitting ‘[e]vidence of other crimes,

wrongs, or acts . . . to prove the character of a person in order to show action in

conformity therewith.’” State v. Foxhoven, 161 Wn.2d 168, 174–75, 163 P.3d 786

(2007) (quoting ER 404(b)). The rule does not preclude the admission of evidence

of a defendant’s acts for other purposes such as proving motive, intent, common

scheme or plan, or lack of mistake or accident. ER 404(b). Evidence of other

crimes, wrongs, or acts may be admitted for these purposes so long as the trial

court (1) finds by a preponderance of the evidence that the misconduct occurred,

(2) identifies the purpose for which the evidence is sought to be introduced, (3)

determines whether the evidence is relevant to prove an element of the crime

charged, and (4) weighs the probative value of the evidence against any prejudicial

effect. Foxhoven, 161 Wn.2d at 175.

       The party offering ER 404(b) evidence has the burden of proving by a

preponderance of the evidence that the misconduct actually occurred. State v.

Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995). A reviewing court will uphold

a trial court’s preponderance determination if it is supported by substantial

evidence. State v. Baker, 89 Wn. App. 726, 732, 950 P.2d 486 (1997). The third




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and fourth steps of the ER 404(b) analysis ensure that the evidence does not run

afoul of ER 402 or ER 403, which prohibit irrelevant evidence and allow a court to

exclude relevant evidence if its probative value is substantially outweighed by the

danger of unfair prejudice. State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207

(2012).

       The analysis of the admissibility of evidence under ER 404(b) must be

conducted on the record. Foxhoven, 161 Wn.2d at 175. This requirement “both

facilitates appellate review and ensures that the judge gives thoughtful

consideration to the issue.” State v. Pirtle, 127 Wn.2d 628, 650–51, 904 P.2d 245

(1995). However, “if the record shows that the trial court adopted one of the

parties’ express arguments as to the purpose of the evidence and that party’s

weighing of probative and prejudicial value, then the trial court’s failure to conduct

its full analysis on the record is not reversible error.” State v. Asaeli, 150 Wn. App.

543, 576 n.34, 208 P.3d 1136 (2009) (citing Pirtle, 127 Wn.2d at 650–51).

       Evidence of a defendant’s prior collateral sexual misconduct is admissible

for the purpose of showing the defendant’s “lustful disposition” toward a victim.

State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991). To admit evidence of

lustful disposition in accordance with ER 404(b), the evidence proffered must be

directly connected to the alleged victim, establishing not just general proclivity but

demonstrating a sexual desire for the specific individual. See id. “‘The kind of

conduct receivable to prove this desire . . . is whatever would naturally be

interpretable as the expression of sexual desire. . . . Sexual intercourse is the

typical sort of such conduct, but indecent or otherwise improper familiarities are




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equally significant.’” State v. Ferguson, 100 Wn.2d 131, 134, 667 P.2d 68 (1983)

(quoting State v. Thorne, 43 Wn.2d 47, 60–61, 260 P.2d 331 (1953)) (emphasis

omitted).

       The State argues that the trial court went through the appropriate ER 404(b)

analysis and reasonably exercised its discretion to admit this evidence. Dallas

disagrees, arguing that the trial court did not address all of the necessary factors

for admission on the record and focused on the fact that, although the evidence

was prejudicial, such prejudice could be resolved by cross-examination.

       First, Dallas argues that the court never made a finding that the window-

peeping event occurred by a preponderance of the evidence. Dallas is correct that

there is not an explicit finding in the oral record. However, it is clear from the

court’s refusal to decide the motion before hearing testimony from the witness that

the court understood that it had to make a factual determination regarding the prior

act. Considering all of these factors, it is reasonable to conclude that the court

adopted the State’s position regarding the first element of the analysis. Substantial

evidence supports the implicit finding by a preponderance of the evidence that the

misconduct occurred because Lacasse testified about the specifics of the incident.

       Dallas also argues that any probative value of this evidence was

substantially outweighed by the overwhelming, undue prejudicial effect. The court

clearly considered the prejudicial effect of this evidence. However, the court made

clear that it believed the prejudicial effect of the evidence could be mitigated using

cross-examination.    Under these circumstances, the court appears to have

adopted the State’s argument that the probative value of the evidence was not




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outweighed by the danger of unfair prejudice. We cannot say that the court abused

its discretion in doing so.

       The multiple opportunities for oral argument from the parties and extensive

discussion of applicable case law show that the court was clearly mindful of the

need to find by a preponderance that the event occurred before proceeding to

consideration of prejudice and, ultimately, admissibility.     The trial judge took

testimony to establish what the testimony would be and then proceeded to the next

stage of the inquiry for admission. We can conclude from the record that the

preponderance standard was satisfied and that the judge weighed both the

probative and prejudicial nature of the testimony. Although we would certainly

encourage a trial court to make a more explicit record of its analysis of evidence

under ER 404(b), the court’s failure to conduct the analysis in full on the record is

not fatal in this instance.


II.    Sufficiency of Evidence

       Dallas also argues that the State did not present sufficient evidence at trial

to prove each of the crimes charged beyond a reasonable doubt. Due process

requires the State to prove its case beyond a reasonable doubt. State v. Baeza,

100 Wn.2d 487, 488, 670 P.2d 646 (1983). When reviewing the sufficiency of the

evidence presented at trial, the question is whether, after viewing the evidence in

the light most favorable to the State, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. State v. Green, 94

Wn.2d 216, 221, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of




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the State’s evidence and all reasonable inferences from the evidence. State v.

Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

      When reviewing the sufficiency of the evidence, we must draw all

reasonable inferences from the evidence in favor of the State and interpret them

most strongly against the defendant. Id. Under this standard, circumstantial

evidence is deemed equally as reliable as direct evidence. State v. Cardenas-

Flores, 189 Wn.2d 243, 266, 401 P.3d 19 (2017). “‘Circumstantial evidence is

evidence of facts or circumstances from which the existence or nonexistence of

other facts may be reasonably inferred from common experience.’”          State v.

Jackson, 145 Wn. App. 814, 818, 187 P.3d 321 (2008) (quoting 11 WASHINGTON

SUPREME COURT COMMITTEE        ON   JURY INSTRUCTIONS, W ASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL § 5.01, at 124 (2d ed. 1994)).

However, the existence of a fact cannot rest on guess, speculation, or conjecture.

State v. Colquitt, 133 Wn. App. 789, 796, 137 P.3d 892 (2006). “‘Credibility

determinations are for the trier of fact’ and are not subject to review.” Cardenas-

Flores, 189 Wn.2d at 266 (quoting State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d

850 (1990)).

      The testimony of an alleged sex offense victim need not be corroborated to

sustain a conviction. RCW 9A.44.020(1). The Washington Supreme Court has

recognized that “[s]uch offenses are rarely if ever committed under circumstances

permitting knowledge and observation by persons other than the accused and the

complaining witness, and not all such offenses are otherwise capable of

corroboration.” State v. Galbreath, 69 Wn.2d 664, 670, 419 P.2d 800 (1966).




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       A. Rape of a Child

       At the time of Dallas’ trial, a person could be convicted of rape of a child in

the first degree “when the person has sexual intercourse with another who is less

than twelve years old and not married to the perpetrator and the perpetrator is at

least twenty-four months older than the victim.” Former RCW 9A.44.073(1) (1988),

amended by LAWS OF 2021, ch. 142, § 2. For the purpose of sexual offenses, the

term “sexual intercourse” “has its ordinary meaning and occurs upon any

penetration, however slight,” including “any penetration of the vagina or anus[,]

however slight, by an object, when committed on one person by another.” RCW

9A.44.010(1).

       A.L.M. testified that Dallas had digitally penetrated her vagina on three

separate occasions in 2007, when she was 11 years old. Testimony also showed

that A.L.M. and Dallas were not married and that Dallas was 16 years older than

A.L.M. Sufficient evidence existed for each of the charges of rape of a child in the

first degree.


       B. Child Molestation

       At the time of Dallas’ trial, a person could be convicted of child molestation

in the first degree “when the person has . . . sexual contact with another who is

less than twelve years old and not married to the perpetrator and the perpetrator

is at least thirty-six months older than the victim.” Former RCW 9A.44.083(1)

(1994), amended by LAWS OF 2021, ch. 142, § 5. “Sexual contact” is defined as

“any touching of the sexual or other intimate parts of a person done for the purpose




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of gratifying sexual desire of either party or a third party.” RCW 9A.44.010(2).

“Sexual gratification” is not an essential element of the crime but is meant to clarify

the definition of the essential element of “sexual contact.” State v. Lorenz, 152

Wn.2d 22, 34–35, 93 P.3d 133 (2004). Contact is considered “intimate” within the

meaning of the statute if it is of such nature that a person of common intelligence

could be fairly expected to know that, under the circumstances, the parts touched

were intimate and therefore the touching was improper. Jackson, 145 Wn. App.

at 819. Breasts and genitalia are considered intimate areas. Id.

       Again, there was sufficient testimony at trial to establish that A.L.M. was 11

years old in the summer of 2007, that she was not married to Dallas, and that

Dallas was at least 36 months older than she was. A.L.M. testified about two

specific occasions on which Dallas touched the exterior of her genitalia. This is an

intimate area, and a person of common intelligence could be fairly expected to

know that the touching was improper under the circumstances.              There was

sufficient evidence in the record to support each conviction of child molestation in

the first degree.

       Affirmed.




WE CONCUR:




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