State v. Fisher

Madsen, J.

¶64 (concurring) — While I agree that Timothy Fisher’s conviction should be reversed, I do not agree that this reversal can be based solely on prosecutorial *758misconduct. The root of the error in Fisher’s trial starts with the trial court’s erroneous decision to admit testimony of physical abuse that had no temporal relationship to the sexual molestation charges in this case. That error was compounded by defense counsel’s failure to request a limiting instruction related to prior physical abuse and culminates in the prosecution’s use of the evidence to argue that Fisher was an abuser, had a propensity for physical abuse, and therefore clearly committed acts of sexual abuse against Melanie Lincoln. It is the number and interrelation of errors in Fisher’s trial that create the grounds for reversal of his conviction, not the prosecutor’s conduct standing alone. In my opinion, the accumulation of errors denied Fisher a fair trial and only when taken as a whole do they warrant reversal.

Admission of ER 404(b) Evidence

¶65 I agree with the majority that the trial court did not abuse its discretion in admitting evidence that Fisher physically abused Melanie, Brett Lincoln, Brittany Doyea, and Tyler Fisher during the two years that Melanie alleges the sexual abuse against her also occurred. Majority at 746. I also agree with the majority that the trial court abused its discretion in admitting evidence that Fisher physically abused his current stepchildren. Majority at 749-50.1 write separately because, in my opinion, the trial court also abused its discretion in admitting evidence that Fisher physically abused Tyler six years prior to meeting Melanie and marrying her mother. Additionally, because I do not agree that reversal is warranted on the basis of prosecutorial misconduct alone it is necessary to more fully analyze the trial court’s admission of ER 404(b) evidence and the prosecutor’s use of that evidence.

¶66 “Before admitting evidence of other wrongs under ER 404(b), a trial court must (1) find that a preponderance of evidence shows that the misconduct occurred; (2) identify the purpose for which the evidence is being introduced; (3) *759determine that the evidence is relevant; and (4) find that its probative value outweighs its prejudicial effect.” State v. Baker, 89 Wn. App. 726, 731-32, 950 P.2d 486 (1997) (footnote omitted) (citing State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995)). The trial court should always “begin with the presumption that evidence of prior bad acts is inadmissible.” State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). “In doubtful cases, the evidence should be excluded.” Baker, 89 Wn. App. at 732 (citing State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986)).

¶67 As the majority notes, a trial court’s admission of ER 404(b) evidence is reviewed for abuse of discretion. Majority at 745; State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008) (citing State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995)). Abuse of discretion exists when “a trial court’s exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons.” State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

¶68 In child molestation and sexual abuse cases, courts have allowed evidence of prior bad acts by the defendant against the victim to explain the victim’s delay in reporting sexual abuse and to rebut the “implication that molestation did not occur.” State v. Wilson, 60 Wn. App. 887, 891, 808 P.2d 754, review denied, 117 Wn.2d 1010, 816 P.2d 1224 (1991). The Fourth Circuit Court of Appeals, interpreting Federal Rule of Evidence 404(b), cited Court of Appeals, Division Two’s decision in Wilson and expanded its reasoning to hold that evidence of physical violence against a sexual abuse victim and her family is admissible “to explain [the victim’s] submission to the acts and her delay in reporting the sexual abuse.” United States v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995), cert. denied, 516 U.S. 1077 (1996).9

*760¶69 In analyzing the admissibility of physical abuse to explain a victim’s state of mind, delay in reporting, or credibility under ER 404(b), courts have focused on the relevance factor of the ER 404(b) test for admissibility.10 The Fourth Circuit in Powers most clearly states the nexus between physical abuse and sexual assault: “Evidence of the beatings of both [the victim] and her family provides a cogent explanation for [the victim’s] failure to report the sexual abuse.” 59 F.3d at 1465. In Powers the Fourth Circuit noted, “when taken as a whole,” physical beatings that predate sexual abuse “show that [the] abuse that [the defendant] inflicted upon his family was, in reality, one continuous pattern of activity that existed whenever he was present in the home.” Id. at 1466.

¶70 When admitted to explain delay, the relevance standard under ER 404(b) requires that the evidence that a defendant physically abused a victim who is alleging sexual abuse, or her family, demonstrate the abuse caused the sexual assault victim’s hesitation to report the sexual abuse. Additionally, the test for relevancy includes a temporal component between the physical abuse and the sexual abuse. Thus, if the victim did not know of or witness the physical abuse, or the abuse occurred many years before or after the allegations of sexual abuse, such evidence cannot be logically held to have caused the victim to delay reporting and is therefore not relevant under ER 404(b).

¶71 In this case the evidence showed that the defendant physically abused Melanie, her sister (Brittany), and her brother (Brett), over the course of two years. It was during these two years that Melanie alleges the sexual abuse occurred. The trial judge ruled that the evidence would be allowed to “explain the delay in reporting.” Verbatim Report of Proceedings at 190. Evidence that Fisher physically *761abused Melanie, her brother and sister, as well as Tyler (Fisher’s biological son), during this two year time period in which the children lived together, is sufficiently, temporally related to her claim of sexual abuse. The close nexus between the physical abuse and the sexual abuse makes the evidence of physical abuse relevant to explaining her delay in reporting. Based on its relevance and probative value, the trial court was within its discretion to admit this evidence.

¶72 In contrast, evidence that the defendant physically abused Tyler six years before he lived with Melanie is not sufficiently, temporally related to be considered relevant to the allegations of sexual abuse. Though she may have been aware of defendant’s past behavior, she was not a witness to it and the abuse did not occur near the time of the sexual abuse. This evidence fails to meet the relevance standard in ER 404(b). Lacking relevance, the evidence lacked probative value and served only to prejudice Fisher. The trial court therefore abused its discretion in admitting evidence that Fisher had abused his biological son six years prior to the time he allegedly sexually assaulted Melanie.

¶73 Evidence that the defendant physically abused his current stepchildren, Shelby and Ashland, is also not sufficiently, temporally related to be relevant to Melanie’s allegations of sexual abuse. At the time of these incidents, Fisher no longer had contact with Melanie. Fisher’s abusive actions toward unrelated children more than six years after the sexual abuse is said to have occurred could not have affected Melanie’s decision to delay reporting. I agree with the majority that evidence of this abuse fails to meet the relevance standard of ER 404(b) and served only to prejudice Fisher. The trial court therefore abused its discretion in admitting evidence that Fisher abused his current stepchildren six years after the time he allegedly assaulted Melanie.

¶74 While I believe admitting evidence of physical abuse against Fisher’s current stepchildren and against his biological son occurring six years before the alleged molesta*762tion was error, it was cumulative of other properly admitted evidence of physical abuse against the children. Thus, standing alone, admission of this evidence does not require reversal.

Prosecutorial Misconduct

¶75 Although the majority agrees that the trial court properly ruled that evidence Fisher physically abused Melanie, Brett, and Brittany would be admissible to explain delay, the majority faults the prosecutor for “preemptively introducing the evidence,” thereby failing to use the evidence “for its purported purpose.”11 Majority at 747-48. The majority’s criticism is based on its belief that “defense counsel never made an issue of Melanie’s delay in reporting.” Id. at 749. The majority is mistaken.

¶76 First, in their briefing, defense counsel plainly acknowledges Melanie “testified that she delayed reporting because she was afraid of Mr. Fisher.” Suppl. Br. of Pet’r at 11. In addition, the record reveals that during opening argument, defense counsel questioned Melanie’s failure to report the sexual abuse to a police officer in July 1999 and told the jury that Melanie would likely acknowledge this failure to report the sexual abuse by saying she was “embarrassed and fearful.” Suppl. Clerk’s Papers (SCP) at 171. He then argued that “Melanie is gonna say that this happened, basically, every day and it was so traumatic she had no social life.. .. [W]e will be asking Melanie about the 58 some-odd pages of entries that she made . . . how she could make all of those entries in this diary without ever mentioning Mr. Fisher.” SCP at 177-78.

¶77 Because the defense questioned Melanie’s delay in reporting during opening argument, it was proper for the *763prosecution to introduce the ER 404(b) evidence that the trial court had determined would be relevant if the delay in reporting was made an issue.

¶78 Moreover, throughout the trial, defense counsel continued to make Melanie’s failure to report a major issue:

[Defense counsel]: I think you know where I’m going. You wrote a diary, correct?
[Melanie]: Yes.
[Defense counsel]: In the diary, do you talk about the sexual abuse?
[Melanie]: No, I do not.
[Defense counsel]: Do you talk about the threats?
[Melanie]: No.
[Defense counsel]: Do you talk about the sex?
[Melanie]: No.
[Defense counsel]: To Officer Manthey, you said that - did you say that he [Fisher] was physically abusive to you or to your family?
[Melanie]: It was to all of us.
[Defense counsel]: Okay. But so at that point in time, you didn’t say he is physically abusive to me?
[Melanie]: Yes.
[Defense counsel]: Okay. What kind of abuse were you talking about then?
[Melanie]: Physical.
[Defense counsel]: Which acts?
[Melanie]: The punching, the hitting, the bashing our heads together.
[Defense counsel]: The punch to the shoulder? The hits to the head?
[Melanie]: Yes.
[Defense counsel]: The time your and Brett’s heads came together?
[Melanie]: Yes.
[Defense counsel]: So to some extent, you told Officer Manthey about physical abuse?
*764[Melanie]: Yes.
[Defense counsel]: You felt comfortable talking about the physical abuse in front of the officer, correct?
[Melanie]: Yes.
[Defense counsel]: How about the threats? Did you say he threatened me that he would hurt us much worse if we told?
[Melanie]: I don’t remember.
[Defense counsel]: What’s your best —
[Melanie]: Probably.
[Defense counsel]: Probably you told Officer Manthey that you were threatened if you told?
[Melanie]: Yes.
[Defense counsel]: All right. How about sex?
[Melanie]: No.
[Defense counsel]: All right. Jenna was your best friend, according to your diary?
[Melanie]: Yes.
[Defense counsel]: Did you tell her about the physical abuse?
[Melanie]: She knew a little bit about it, yes.
[Defense counsel]: So a little. How about the threats?
[Melanie]: No.
[Defense counsel]: How about the sex?
[Melanie]: No.
[Defense counsel]: I’m restricting this with your mom prior to March 2003, because we know you told your mom and then the police got called.
[Melanie]: Okay.
[Defense counsel]: Prior to March of 2003, did you tell your mom about the physical abuse?
[Melanie]: No
[Defense counsel]: Not at all?
[Melanie]: (Shakes head from side to side). 2003?
[Defense counsel]: Yeah.
[Melanie]: She knew about it when we did the police report, yes.
*765[Defense counsel]: Okay. That’s what I was looking for. . . .
[Defense counsel]: So you told your mom about the physical abuse. How about the threats? Did you tell your mom?
[Melanie]: Yes.
[Defense counsel]: And that’s prior to March 2003?
[Melanie]: No.
[Defense counsel]: At the time, had you forgotten about this alleged abuse or did you just choose not to tell?
[Melanie]: At what time, sir?
[Defense counsel]: Prior to March of 2003.
[Melanie]: I remembered it. I just chose not to tell.
[Defense counsel]: Okay. Did your mother ever follow up, after 1999, but before 2003, and say what else happened? Did he ever molest you in any way?
[Melanie]: No.
[Defense counsel]: Your answer to that was no?
[Melanie]: Yes.
[Defense counsel]: So you never lied to your mother?
[Melanie]: She never really asked about it. We never talked about it.
[Defense counsel]: Did Jenna ever ask you if there was anything sexual?
[Melanie]: No.
[Defense counsel]: So basically you didn’t lie to Jenna, correct?
[Melanie]: That’s correct.
[Defense counsel]: In the diary, you make no mention of any of this. But a diary is not gonna ask you, so you didn’t actually lie in your diary?
[Melanie]: No.
[Defense counsel]: And then, what’s your best guess as to this officer? Did you lie to the officer?
[Melanie]: If he asked me. I cannot even tell you if he asked me the question. I don’t know.

SCP at 315-19.

*766¶79 Clearly, defense counsel’s opening statement and cross-examination directly called into question Melanie’s credibility based on failure to report the sexual abuse at the time it occurred, raising the issue of her delay in reporting the allegations of sexual abuse. Unlike the majority, I cannot find the prosecutor violated the trial court ruling conditioning admission of physical abuse evidence on defense counsel’s making an issue of Melanie’s delayed reporting.

¶80 I also disagree with the majority’s view that the prosecutor violated the court’s directive as to the use to be made of the physical abuse evidence. Majority at 748. Defense counsel failed to request a limiting instruction be given to the jury regarding any of the physical abuse evidence. Where a trial court has determined one purpose for admitting ER 404(b) evidence, it is incumbent upon the party against whom the evidence is admitted to request a limiting instruction: “When evidence is admissible ... for one purpose,” such as to prove the victim’s state of mind or a delay in reporting, “the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” ER 105 (emphasis added). Failure to request a limiting instruction renders the evidence available to both parties for all purposes. Lockwood v. AC&S, Inc., 109 Wn.2d 235, 255, 744 P.2d 605 (1987) (“Absent a request for a limiting instruction, evidence which is admitted as relevant for one purpose is deemed relevant for others.”); State v. Newbern, 95 Wn. App. 277, 295-96, 975 P.2d 1041 (1999) (“A party’s failure to request a limiting instruction constitutes a waiver of that party’s right to such an instruction and fails to preserve the claimed error for appeal.”).

¶81 Washington courts have held that evidence of prior physical abuse of either a victim or her family members is admissible to “rebut the implication that the molestation did not occur,” State v. Grant, 83 Wn. App. 98,106, 920 P.2d 609 (1996), and to show “that the physical abuse was part of a larger scheme or plan of sexual abuse.” Wilson, 60 Wn. App. at 890. Defense counsel’s failure to request an instruc*767tion to the jury limiting use of the physical abuse evidence to explaining the delay in reporting renders the evidence available for these purposes as well as any “other purpose! ]” that fits within the scope of the exceptions in ER 404(b).

¶82 Defense counsel argues that our case law “requires the proponent of the evidence to establish its admissibility outside the presence of the jury and for the court to balance the relevance of the evidence prior to admission.” Suppl. Br. of Pet’r at 11. This is a correct statement of the law. However, in Fisher’s case the court held an evidentiary hearing outside the presence of the jury at which defense counsel was present and made arguments regarding the evidence offered by the prosecution. Defense counsel knew the prosecution was going to elicit testimony regarding Fisher’s abuse of Melanie and her siblings. Defense counsel had every reason to know of the need to request a limiting instruction. Because Fisher failed to request a limiting instruction, the prosecutor here was entitled to argue all reasonable inference from evidence properly admitted.

Propensity Argument by the Prosecutor

¶83 The majority also holds the prosecutor committed reversible misconduct when he invited the jury to convict Fisher of sexually abusing Melanie based on Fisher’s propensity for physically abusing Melanie and the other children. Majority at 747-49. While I agree that this argument was improper, I do not agree that the conduct was so “ ‘ “flagrant and ill-intentioned” ’ ” that it evinced an “ ‘ “enduring and resulting prejudice” ’ ” against Fisher that could not have been neutralized by an appropriate instruction to the jury. Majority at 747 (quoting State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006) (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997))).

¶84 As the majority notes, when objected to, prosecutorial misconduct is grounds for reversal where there is a “substantial likelihood the improper conduct affected the jury.” Majority at 747 (citing State v. Belgarde, *768110 Wn.2d 504, 508, 755 P.2d 174 (1988)). Where a defendant does not object to prosecution comments, any resulting error is waived “unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).

¶85 Fisher did not object during the prosecutor’s closing argument. The majority excuses this failure by holding that defense counsel’s standing objection during trial, combined with the trial court’s pretrial ruling on the admissibility of the evidence, suffices to preserve the issue on appeal. Majority at 747-49. I disagree. The majority’s holding relieves the defendant of the duty to timely and clearly object to offending arguments. See 13 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure § 4505, at 295 (3d ed. 2004) (“If either counsel indulges in any improper remarks during closing arguments, the other must interpose an objection at the time they are made. This is to give the court an opportunity to correct counsel, and to caution the jurors against being influenced by such remarks.”); State v. Weber, 159 Wn.2d 252, 271-72, 149 P.3d 646 (2006) (Were a party not required to object, “ ‘[a] party so situated could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal.’ ” (alteration in original) (quoting State v. Sullivan, 69 Wn. App. 167, 173, 847 P.2d 953 (1993))).

¶86 The standing objection at issue was made after a defense objection to the admission of ER 404(b) evidence during the prosecutor’s cross examination of Mr. Fisher.12 SCP at 759. Overruling the objection during a bench conference, the judge stated that while it would be confus*769ing to ask Mr. Fisher if he was the common denominator in all of the children’s accusations, “[y]ou could certainly argue it in argument, what you feel the common link and I think that is probably more appropriate.” Id. at 760. To which defense counsel replied, “I object to it at that point then, also, Judge. Could we have a standing objection on that then, Judge?” Id.

¶87 The “standing objection,” never ruled on by the trial court, cannot stand in the place of an objection timely made during closing argument to a specific statement by the prosecutor. It is the trial court’s ruling on a specific issue that allows this court to consider the issue on appeal. Bellevue Sch. Dist. No. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967) (“The trial court must have an opportunity to consider and rule upon a litigant’s theory of the case before this court can consider it on appeal.” (citing, inter alia, State v. Morris, 70 Wn.2d 27, 422 P.2d 27 (1966))); see State v. Moen, 129 Wn.2d 535, 547, 919 P.2d 69 (1996) (“[T]he purpose of requiring an objection in general is to apprise the trial court of the claimed error at a time when the court has an opportunity to correct the error.”). Because the defendant did not object to specific statements, when the statements were made, the trial court never had the opportunity to determine if the statement was a “reasonable inference[ ] from the evidence,” State v. Gregory, 125 Wn.2d 759, 860,147 P.3d 1201 (2006), or a “bald appeal[ ] to passion and prejudice.” Majority at 747 (citing Belgarde, 110 Wn.2d at 507-08).

¶88 Further, the trial court’s pretrial ruling on the admissibility of evidence cannot stand in the place of a proper objection to the prosecutor’s use of the evidence during closing. The majority’s holding again relieves the defendant of the duty to request a limiting instruction and places a burden on the prosecutor to impose a limitation that was not ordered by the trial court.13

*770¶89 The majority relies on Clark to support its position that defense counsel “was not required to request a limiting instruction.” Majority at 748 n.4 (citing State v. Clark, 48 Wn. App. 850, 865 n.3, 743 P.2d 822 (1987)). But, in Clark the Court of Appeals followed the rule of ER 105 and held that absent a request for a limiting instruction, “error is waived ....” Clark, 48 Wn. App. at 865 n.3. The Clark court held that even assuming introduction of ER 404(b) evidence violated the “ ‘ground rules’ ”14 established prior to trial, there was “no basis for relieving [the defendant] of the obligation to request a curative instruction.” Id.

¶90 Though I find that the defendant had a duty to request a limiting instruction as well as a duty to timely object to offending argument, I agree that certain of the prosecutor’s statements in closing arguments were nonetheless improper. A prosecutor’s invitation to convict a defendant on propensity is never appropriate argument.15 ER 404. But, this does not mean the prosecutor’s argument was flagrant and ill intentioned. The prosecutor’s theory of the case was that Fisher’s sexual abuse was simply an advanced form of physical punishment. From the beginning he argued that the evidence would show Fisher’s punishment of Melanie progressed from physical to sexual when he decided that “she was too old for spankings.” SCP at 163.

¶91 The majority, however, finds the argument to be flagrant and ill intentioned because “the prosecuting attorney was well aware of the trial court’s ruling and Fisher’s standing objection.” Majority at 748 n.4. Although I doubt that “awareness” of the pretrial ruling admitting evidence and the standing objection made in this case is enough to demonstrate flagrant and ill intentioned conduct by the prosecutor, the defendant’s failure to request a limiting *771instruction must also be factored in, as well as the State’s theory of the case. With these factors in mind, it is difficult to determine what, exactly, the prosecutor should have been “aware of” when there was no limiting instruction or when the defendant said, “I object to it at that point then, also, Judge,” during a midtrial cross-examination. SCP at 760. Had the defendant objected at the time the prosecutor made the offending statements, the trial court could have made a ruling, the prosecution would have known exactly what the defendant found objectionable, and the opportunity to cure the prejudice would have not passed. Id. at 863-64.

¶92 Viewed in the context of the entire trial, and in light of the defendant’s failure to object or request a limiting instruction, I do not believe that the prosecutor’s comments during closing argument evinced an “enduring and resulting prejudice.” In my view, reversal is not warranted on this issue standing alone.

Improper Gestures by Prosecutor

¶93 Unfortunately, the errors in Fisher’s trial do not end with the improper admission of past unrelated abuse and an improper propensity argument. Five people in attendance during Fisher’s trial have stated they observed the prosecuting attorney make gestures or facial expressions during the defense’s closing arguments. The gestures include “raising his arms/hands as if in disbelief,” Clerk’s Papers at 78, “shaking his head in a negative manner,” id. at 79, and “striking his forehead with the palm of his hand as if amazed at [defense counsel’s] statements.” Id. at 80. The facial expressions include “making facial expressions of disbelief while facing towards the jury,” id. at 79, and “wincing” and “rolling is [sic] eyes.” Id. at 77.

¶94 As the Court of Appeals notes, “[a] prosecutor should refrain from personally attacking defense counsel, impugning the character of the defendant’s lawyer, or disparaging defense lawyers in general as a means of imputing guilt to the defendant.” State v. Fisher, noted at 136 Wn. App. 1009, *7722006 Wash. App. LEXIS 2668, at *19 (citing State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984); United States v. McDonald, 620 F.2d 559, 564 (5th Cir. 1980)). The prosecutor’s facial expressions and gestures in this case were clearly improper. However, as with the other errors in this trial, standing alone it is unlikely these gestures would have so prejudiced the defendant as to have affected the jury.

Cumulative Error Doctrine

¶95 The cumulative error doctrine applies to cases in which “there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial.” State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000) (citing State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984); State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963) (three instructional errors and the prosecutor’s remarks during voir dire required reversal); State v. Alexander, 64 Wn. App. 147, 158, 822 P.2d 1250 (1992) (reversal required because (1) a witness impermissibly suggested the victim’s story was consistent and truthful, (2) the prosecutor impermissibly elicited the defendant’s identity from the victim’s mother, and (3) the prosecutor repeatedly attempted to introduce inadmissible testimony during the trial and in closing); State v. Whalon, 1 Wn. App. 785, 804, 464 P.2d 730 (1970) (reversing conviction because (1) court’s severe rebuke of the defendant’s attorney in the presence of the jury, (2) court’s refusal of the testimony of the defendant’s wife, and (3) jury listening to tape recording of lineup in the absence of court and counsel)).

¶96 While I do not believe any of the errors in Fisher’s trial standing alone would merit reversal of his conviction, taking the errors into consideration as a whole, I am left with the abiding belief that he did not receive a fair trial. I concur in the judgment of the majority that Fisher’s conviction should be overturned.

The court in Powers noted that there are “no federal decisions under Rule 404(b) addressing the admissibility of physical violence against a victim and members of the family in a sexual abuse case.” Powers, 59 F.3d at 1465 n.3. The court goes on to note that because of the narrow federal criminal jurisdiction in these cases, federal courts “look to state law for its persuasive force where applicable.” Id.

The Wilson court discussed the relevance of the physical abuse under ER 401 and ER 402. Whether discussed separately under ER 401 and ER 402 or as part of the three-step analysis for allowing ER 404(b) evidence, the test as to whether or not physical abuse is relevant to a charge of sexual abuse is the same. Wilson, 60 Wn. App. at 890.

The majority states that Fisher argues, “the State committed misconduct in its presentation of the ER 404(b) evidence.” Majority at 746. However, Fisher argued only that the prosecutor committed “misconduct in eliciting additional 404(b) evidence without seeking permission outside the presence of the jury” not that previously admitted ER 404(b) evidence was improperly preemptive. Suppl. Br. of Pet’r at 13 (emphasis added).

While attempting to establish that Fisher created a “point system” of physical punishment for all of the children similar to the “point system” of sexual punishment Melanie testified to, the prosecutor asked, “Mr. Fisher, with all of these accusations, all of these acts, what is the one common denominator?” SCP at 759. To which defense counsel objected, “At this point, Rule 404(b) should not be abused in such a fashion any longer.” Id.

If the court’s ruling on admissibility becomes an “order” that must be obeyed, what is the purpose of a rule requiring the defendant to request a limiting instruction?

The “ ‘ground rules’ ” in Clark were based on repeated agreements by both sides “that evidence of prior bad acts would not be introduced without prior court clearance.” Clark, 48 Wn. App. at 865.

“The law is not comfortable with the notion that once a criminal, always a criminal.” 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice § 404.10, at 498 (5th ed. 2007).