State Of Washington, Respondent V Duane Michael Rader, Appellant (Majority)
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Cis ' OW QED Or APPEALS IN THE COURT OF APPEALS OF THE STATE OF W. A IfWNTON KYA DIVISION II P NTY No. 43332 -0 -II STATE OF WASHINGTON, Respondent, V. UNPUBLISHED OPINION DUANE MICHAEL RADER, 0 PENOYAR, J. Duane Rader appeals his first degree arson, felony harassment, unlawful imprisonment, and fourth degree assault domestic violence related convictions against his then wife H.R. 1 Rader argues the trial court erred when it admitted into evidence ( 1) prior misconduct testimony and ( 3) ER 404( b), ( under statements he made 2) expert testimony on the general dynamics of domestic violence, to a treating physician' s assistant. Rader also argues there was insufficient evidence for the jury to find the aggravating factor that the arson and unlawful imprisonment charges occurred within statement of additional offender under grounds ( the SAG), sight or sound of the victim' s minor child. In his Rader argues the trial court improperly calculated his Because the trial court improperly admitted the prior misconduct testimony score. ER 404( b), we reverse and remand for further proceedings. FACTS I. BACKGROUND Rader began a and dating H. R. met online relationship, and in January quickly 2010. moved In August 2010, they met in person and in together. Rader and H.R. were married on January 3, 2011. 1 It is appropriate to provide some confidentiality in this case. Accordingly, initials will be used in the body of the opinion to identify certain parties involved. 43332 -0 -II H.R. testified that after they were married, Rader became controlling and he started physically and H.R said that between mid- January and mid February mentally abusing her. Rader pushed her approximately eight times when she tried to leave during arguments, one time pushing the back of her head causing her head hit the door. According to H.R., in mid January Rader threatened her approximately once or twice a week, and told her that if she left him, he would hurt her and her 11- old year - daughter. He also told H.R. that she was worthless and that he deserved better. II. FACTS RELATED TO THE CRIMES CHARGED H.R. testified that on the evening of February 13, 2011, she and Rader were in their living room together, and responded that he Proceedings ( RP) when would " at an hour bedroom door, and told poured himself a drink she asked drink everything in the house if he after H.R. her that comment, H.R. to bed, Rader went Rader' After 421. . Approximately her] head." Rader went she " s him to stop wanted drinking. to." Rader 3 Report of went upstairs to go to bed. upstairs, slammed open H. R.' s was evil and that he had a bullet he was going to put in 3 RP at 426. Rader then went back downstairs to the living room and H.R. got up, wearing just a tank top and underwear, and started downstairs to get her purse so that she could leave with her daughter. As she was walking downstairs, H.R. heard her daughter " kind of awake in her room." 3 RP at 432. H.R. went into the kitchen to retrieve her purse. Rader also went into the kitchen, grabbed H.R. by the back of her head, hit her head on the counter, and tossed her to the floor, causing her head to bruise. evil and had to die While she was still on the floor, Rader again told H.R. that she was and poured lighter fluid on her legs. He then tossed a lit match on her legs, causing her legs to catch fire. H.R. began screaming and grabbed a blanket off the couch to wrap 2 43332 -0 -II around her legs. H.R. went upstairs to soak her legs in cold water and then put aloe vera gel on them, which failed to soothe the pain. H.R. then H.R.' s daughter went just terrified.... was wrong." 3 RP her daughter if she her at her head of She poked was back downstairs to crying 463. was get phone and call 911. On her way downstairs, H. R. testified that her daughter " was frantic. room. and her asking ... She what all the yelling was about and what Rader objected to H.R. calling 911 and threatened to hurt H.R. and told the truth; H. R. so promised not to tell the truth. H.R. told the 911 operator and the firemen, EMT, and police officers who responded that she was filling a Zippo lighter when she spilled lighter fluid on herself. Rader told deputy sheriff Tyson Beall that he was smoking a cigarette by the back door when the couch accidentally caught on fire. H.R. and her daughter were taken to the hospital. When Rader visited H.R. at the hospital the next morning, he again threatened to hurt her and her daughter if she told the truth. H.R. remained in the hospital for five days, was in severe pain for about a month, and could not walk without a walker or crutches for about a month. Several days later, Rader went to an aid station on Joint Base Lewis- McChord and was treated for burns on his right hand and left foot by Physician' s Assistant Rebecca Bean. Rader told Bean that he had been burnt by a fire that he started while he was drunk. He also told Bean he had not come in sooner because his wife was also burned and that he had been in the hospital with her. At the beginning of May 2011, H.R. and her daughter moved to Bellingham to care for H.R.' s she sick grandmother. told the police what By August 2011, H.R. felt safe enough being away from Rader that really happened on February 13, 2011. After Rader was arrested, he attempted to call H.R. ten times while in jail, completing three of those calls on August 18, 2011 9 43332 -0 -II between 12: 55 ruined PM and In 5: 30 PM. one of the calls, Rader stated, " It happened.... That night my life." 3 RP at 568. PROCEDURAL HISTORY III. State The domestic enhancement / violence; ( 3) felony enhancement/ degree violence; ( 2) violence; ( domestic assault / violence ( April 1 and degree first 1) with: ( first degree harassment /domestic domestic violence' ( between Rader charged arson with child violence; ( 5) tampering February 13, attempted with 4) murder with child enhancement /domestic unlawful imprisonment with child domestic a witness / 2011); ( April 30, 2011); ( 8) -( 10) 7) violence; ( 6) fourth fourth degree assault /domestic violation of a pretrial no contact order / domestic violence. Prior to trial, the State moved to admit the testimony of Rader' s former spouse R.R. to bolster the credibility of H.R., arguing that the testimony was important in light of H.R.' s delay in claiming abuse. 2003 to April 2010). R.R. during Prior to marrying H.R., Rader was married to R.R. for seven years ( March According to R.R., about a month after they married, Rader threw things at an argument. Again a few months later, R.R. said Rader punched her in the arm. R.R. said that in 2004 Rader threw a plate at her, and during another argument, he threw a beer bottle at her. arms, and Following an argument in 2005, R.R. said Rader pursued her, grabbed her by the threw her in his vehicle. R.R also testified that in 2008, while she was in their driveway, Rader grabbed her by her hair and slammed her head into the pavement, and shortly thereafter Rader grabbed R.R. by her hair again. During their seven -year marriage, R.R. said that she never reported the abuse to the police because she was afraid Rader would harm her, her children, or her family. R.R. said Rader threatened to kill her children in front of her and made several other threats during the 11 43332 -0 -II duration of their marriage. R.R. also said Rader told her she was not good enough and said that evil, worthless, women were and useless. Rader and The trial R.R. divorced in April 2010. court found the prior misconduct testimony properly admissible under ER 404( b) as part of a common scheme or plan. The State also moved to admit Peg Cain' s expert testimony " regarding the dynamics of domestic and the reasons why these dynamics often lead to seemingly inconsistent violence ... conduct on Clerk' s Papers ( CP) the part of victims." the testimony regarding dynamics general at 135. domestic of The trial court ruled that the expert violence was admissible " due to the nature of the disclosure in this case [ which] occurred substantially after the alleged incident." CP at 29. Rader moved to exclude his statements to Bean, the physician' s assistant who treated him at Joint Base Lewis- McChord. while he was drunk and that Specifically, he wanted the statements that he started the fire his wife was also burned excluded. The trial court found the physician- patient privilege inapplicable and " that the public interests outweighs the application of the privilege." Rader jury found 1 RP 133. pleaded Rader harassment /domestic degree assault ( guilty to the three guilty of ( violence, ( February 3) 1) violation of no contact order charges. first unlawful 13, 2011) /domestic degree arson/ domestic imprisonment / domestic violence. CP at 17 -22. The violence, ( violence, 2) and ( felony 4) fourth The jury also found the aggravating factor that the arson and unlawful imprisonment were committed in the presence of a child. At the sentencing hearing, the parties agreed to Rader' s offender score, the crimes' seriousness levels, and the sentencing Due to the aggravating factor, the trial court ranges. imposed an exceptional sentence of 120 months. Rader timely appeals. z 43332 -0 -II ANALYSIS PRIOR MISCONDUCT 404(b) EVIDENCE ER I. Rader argues the trial court erred when it admitted R.R.' s testimony as part of a common or plan. scheme We conclude that Rader' s alleged abuse of the two women did not contain distinctive features sufficient to allow the alleged prior misconduct to prove much more than Rader' propensity for domestic s violence. The State sought to admit the ER 404( b) evidence to bolster H.R.' s credibility, but the defendant' s propensity to commit a crime is not a proper inquiry for determining the victim' s Accordingly, the trial court erred by admitting credibility. this evidence and we reverse. Standard of Review A. We review a trial court' s interpretation of ER 404( b) de novo as a question of law. State v. Fisher, 165 Wn.2d 727, 745, 202 P. 3d 937 ( 2009). 404( b), If the trial court correctly interpreted ER we review the trial court' s decision to admit prior misconduct evidence to determine if the trial court relied on unsupported facts, applied the wrong legal standard, or adopted a position no reasonable person would take. Fisher, 165 Wn.2d at 745; State v. Lord, 161 Wn.2d 276, 284, 165 P. 3d 1251 ( 2007). A trial court must always begin with the presumption that evidence of prior misconduct is inadmissible. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P. 3d 119 ( 2003). Under ER 404( b), e] vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The evidence may, however, " be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404( b). 3 43332 -0 -II We read ER 404( b) in conjunction with ER 403, which requires the trial court to exercise its discretion in evaluating whether relevant evidence admits evidence of prior misconduct under evidence the that evidence here, to prior misconduct ER 404( b), 2) occurred, ( prove a common scheme or plan, ( is unfairly prejudicial. Before a trial court it must ( 1) find by a preponderance of the identify the purpose for admitting the 3) determine the relevance of the evidence to prove an element of the crime, and ( 4) weigh the probative value of the evidence against its prejudicial effect. Fisher, 165 Wn.2d at 745; DeVincentis, 150 Wn.2d at 17. Rader does not challenge the trial court' s oral ruling that the State proved the evidence of prior misconduct verity on appeal. by a preponderance of State v. Chanthabouly, the evidence. 164 Wn. denied, 173 Wn.2d 1018, 272 P. 3d 247 ( 2012). App. Unchallenged findings are treated as a 104, 129, 262 P. 3d 144 ( 2011), review Accordingly, we must determine whether the trial court admitted the evidence on appropriate legal grounds. B. Common Scheme or Plan Prior misconduct evidence is admissible to show a common scheme or plan under ER 404( b) where ( 1) the evidence of prior acts is part of a larger, overarching plan; or ( 2) the evidence of prior acts follows a single plan to commit separate but very similar crimes. DeVincentis, 150 Wn.2d at 19. The instant case deals with the second type of common scheme or plan, a single plan followed to commit separate but very similar crimes. Such a common scheme or plan " may be established by evidence that the Defendant committed markedly similar acts of misconduct against similar victims under similar circumstances." Wn. 2d 847, 852, 889 P. 2d 487 ( 1995). Evidence of such a plan "` State v. Lough, 125 must demonstrate not merely similarity in results, but such occurrence of common features that the various acts are naturally to be explained as caused by a general plan of which the charged crime and the prior misconduct 7 43332 -0 -II are at the individual 860). manifestations. "' DeVincentis, 150 Wn.2d at 19 ( quoting Lough, 125 Wn.2d But such common features need not show a unique method of committing the crime. DeVincentis, 150 Wn.2d at 20 -21. When evaluating whether the prior and current misconduct are part of a common scheme or plan, the trial court examines the whole, not a part, of the planning, preparation, and execution of the misconduct. "[ T] he preferred approach is for the trial court to focus on the closeness of the relationship between the other misconduct and the charged crimes in terms of time, place and Lough, 125 Wn.2d at 858. Although a unique modus operandi is one factor to modus operandi." consider, the crux of the inquiry is similarity, not DeVincentis, 150 Wn.2d at 20. uniqueness. The degree of similarity for the admission of evidence of a common scheme or plan must be substantial. DeVincentis, 150 Wn.2d at 20. Here, the State court admitted behavior current by to admit R.R.' s R.R.' s testimony " H.R.]." CP at We common that 27. determine The trial whether with this [ sic] former wife, [ R.R.], and his The trial court noted that this is not a case where Rader such prior evidence of must to bolster H.R.' s credibility. for the purpose of establishing a common scheme or plan of allegedly tried to burn R.R., but that the appropriate testimony defendant relating to his behavior the wife [ sought of abuse domestic the trial both violence women was similar enough " be admitted." court was correct that it is 1 RP at 91. in finding "` such a concurrence of features "' between Rader' s alleged abuse of R.R. and H.R. that his alleged abuse of both victims was naturally to be explained as manifestations of a general plan; thus, making R.R.' s testimony admissible Lough, 125 Wn.2d about the way in at 856). which under ER 404( b). DeVincentis, 150 Wn.2d at 19 -20 ( quoting To so find, we must examine whether there was anything distinctive Rader allegedly abused these two women. In other words, were the 43332 -0 -II features of the abuse commonplace or was there something about the abuse that distinguishes it from that suffered by many victims of domestic If the latter is true, then the test is met violence. because distinctive abuse inflicted on multiple victims is naturally to be explained as manifestations of a general plan. We hold that the alleged acts against R.R. H. R., while emblematic of domestic and violence, were not substantially similar and did not establish a common scheme or plan. Certainly there were common features in the alleged abuse of the two women: the victims were both married to Rader and they both stated Rader physically and verbally abused them. Rader, however, also allegedly committed different acts of abuse against each woman, e. g. he punched R.R. in the arm, but not H.R. and he set H.R. on fire, but did not set R.R. on fire. Thus, while the alleged abuse that R.R. and H.R. suffered was similar, it also was common to the typical domestic problem and, unfortunately, the legal routinely involves threats, witness, violence case. testified, " assaults, Domestic violence is a persistent and pernicious system and this court and verbal abuse. have seen much of it. The abuse . As Cain, the domestic violence expert Domestic violence is a pattern of verbal, emotional, psychological, social, sexual assault, or fear that the hallmark of of imminent harm between intimate domestic advanced no argument that the violence is isolation common elements of and the partners." also 2 RP at 368. controlling behavior. alleged abuse of R.R. and Cain stated The State Rader H. R. pushed both H.R. and R.R., prevented them from leaving, and threatened them and their family' s safety if they left did not fit this usual pattern. Thus we cannot say that the abuse was distinctive or part of Rader' s common scheme or plan, but only that he is allegedly inclined to abuse women. X 43332 -0 -II Because propensity to commit a crime is not admissible under ER 404( b) and the probative value of the evidence was slight and its prejudicial effect significant, it was error to admit this evidence. We reverse and remand for further proceedings. Although we remand to the trial court, we address the following issues because they may repeat upon further proceedings on remand. EXPERT OPINION EVIDENCE 11. Rader argues that the trial court abused its discretion when it admitted expert testimony on the general testimony was dynamics highly of domestic prejudicial and Rader contends that the irrelevant expert violence. requires reversal. We hold the trial court properly exercised its discretion because expert testimony on domestic violence is admissible to explain why a victim may initially deny the abuse. We review the trial court' s decision to admit expert testimony to determine if the trial decision is based court' s on unreasonable or untenable grounds. 918, 927, 155 P. 3d 125 ( 2007); State v. Kirkman, 159 Wn.2d In re Det. of Anderson, 166 Wn.2d 543, 549, 211 P. 3d 994 2009) ( citing Indus. Indem. Co. of Nw., Inc. v. Kallevig, 114 Wn.2d 907, 926, 792 P. 2d 520 1990)). Expert testimony is properly admissible "[ i] f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, the] witness qualifie[ s] as an expert by knowledge, skill, experience, training, or education," and the basis of the expert' s testimony is accepted by experts in the relevant field. ER 702 -03. Under ER 702, expert testimony will be deemed helpful to the trier of fact only if its relevance can be established. prejudicial State v. Riker, 123 Wn.2d 351, 364, 869 P. 2d 43 ( 1994). An evidentiary error " is if, ` within reasonable probabilities, had the error not occurred, the outcome of the 10 43332 -0 -II trial would 2001) ( have been materially affected. "' State v. Neal, 144 Wn.2d 600, 611, 30 P. 3d 1255 quoting State v. Smith, 106 Wn.2d 772, 780, 725 P. 2d 951 ( 1986)). In Washington, expert testimony pertaining to domestic violence is relevant to explain inconsistent behavior the seemingly Wn.2d 591, syndrome would 597, domestic 682 P. 2d 312 ( 1984) ( to admissible leave her not of explain " mate, See, e. g., State v. Allery, 101 violence victims. holding expert testimony on the battered woman why a person suffering from the battered woman syndrome would not inform police or friends, and would fear increased aggression against herself would be helpful to a jury in understanding a phenomenon not within the competence 1165 ( 1988) ( understand of an ordinary lay person. "); State. v. Ciskie, 110 Wn.2d 263, 271, 751 P. 2d admitting expert testimony as to battered women syndrome to help the jury why the Grant, 83 Wn. victim App. failed to leave the relationship 98, 109, 920 P. 2d 609 ( 1996) ( or report the acts of violence); State v. noting that expert testimony pertaining to domestic violence can be valuable to explain apparent inconsistent conduct on the part of the victim). The trial court admitted the expert testimony on the general dynamics of domestic violence because the " delay in [H.R.' s] disclosure creates credibility issues" and P] erhaps [ violence, [ assessment many jurors] would not have a detailed understanding of domestic thus,] of the this type of opinion evidence would be helpful in their circumstances here that are alleged. And . . . this kind of evidence has come in other cases where it is appropriate as expert opinion, and it is generally accepted within the scientific community. 1 RP at 87 -88. At trial, Cain testified generally regarding what a typical domestic violence relationship looks like and how the offender and victim function within that relationship, but made no specific references to either party. See 2 RP at 368 -71, 385 ( discussing characteristics of the 11 43332 -0 -II offender); victim 2 RP may behavior at 372 -77 ( not report the discussing the characteristics of the victim and reasons why the Rader contends that " evidence regarding the mental state or abuse). to of perpetrators was [ not] relevant allegations or to any of the elements of the either why [ H.R.] charged crimes." did not immediately report her Appellant' s Br. at 40 -41. Rader also takes particular issue with Cain' s statement that a woman typically leaves an abuser seven times before staying away and for others it may take fourteen times, " if they' re not dead." 2 RP at 385. Cain' s testimony was offered to educate the jury on the general dynamics of domestic violence and to explain the inconsistencies of H.R.' s reporting of the abuse she suffered. Cain' s testimony about perpetrators was relevant and properly admissible because it provided context for her testimony about victims generally and their typical responses to abuse. Although Cain' s statement that victims may take as many as 14 times to leave their abuser " if they' re not dead," may not be specifically relevant to the jury' s evaluation of H.R.' s credibility, this minor error does not require reversal of Rader' s conviction. Further, Rader did not object to this specific statement at trial. III. PHYSICIAN- PATIENT PRIVILEGE Rader argues the trial court erred when it admitted statements he made to a treating physician' s assistant regarding the cause of his burn- related injuries. Specifically, Rader contends the trial court improperly applied the balancing test between a criminal defendant' s right to claim the physician- patient privilege and the public' s interest in disclosure of his statement' s to the physician' s assistant. We disagree and hold the trial court carefully considered Rader' s motion and properly exercised its discretion when allowing the physician' s assistant to testify regarding Rader' s statements. 12 43332 -0 -II We review a trial court's evidentiary rulings to determine if the trial court' s decision is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. State v. Finch, 137 Wn.2d 792, 810, 975 P. 2d 967 ( 1999). The physician patient privilege prevents a physician from testifying in a civil action about information the physician acquired when treating the patient, unless the patient consents. RCW 5. 60. 060( 4). full disclosure The purposes of the privilege are " to promote proper treatment by facilitating information[,]" and to protect the patient from embarrassment or scandal that of might result if the intimate details of medical treatment were revealed. Carson v. Fine, 123 Wn.2d 206, 213, 867 P. 2d 610 ( 1994). is that " which was necessary to enable [ Information connected with obtaining medical treatment the physician] to prescribe or act for the patient." RCW 5. 60. 060( 4). Unlike all other privileges created by the statute, the legislature did not apply the physician- patient privilege to criminal cases. State v. Smith, 84 Wn. App. 813, 820, 929 P. 2d Washington courts, however, have extended the physician- patient privilege to 1191 ( 1997). criminal prosecutions " so far as practicable" under RCW 10. 58. 010. State v. Mark, 23 Wn. App. 392, 396, 597 P. 2d 406 ( 1979) ( internal quotation marks omitted). In criminal cases, a] pplication of the privilege requires a balancing of the benefits of the privilege against the public interest of full revelation of the facts." State v. Stark, 66 Wn. App. 423, 438, 832 P. 2d 109 ( 1992). The domestic violence statute ( ch. 26. 50 RCW) reflects the legislature' s belief that the public has an interest in preventing domestic 969 P. 2d 90 ( 1998). violence. State v. Dejarlais, 136 Wn.2d 939, 944, Quoting this court, the Supreme Court stated: 13 43332 -0 -II The Legislature has clearly indicated that there is a public interest in domestic violence orders. protection its In domestic statement of intent for RCW 26. 50, the including violations of protective orders, is expressly a public, as well as private, problem, stating that: Legislature that stated violence, Domestic violence is a problem of immense proportions affecting individuals as well as communities. Domestic violence has long been recognized as being at the core of other major social problems: Child abuse, other crimes of violence against person or property, juvenile delinquency, and alcohol and drug abuse. Domestic violence costs millions of dollars each year in the state of Washington for health care, absence from work, services to LAWS of 1992, ch. 111, children, and more. 1. Dejarlais, 136 Wn.2d at 944 ( quoting State v. Dejarlais, 88 Wn. App. 297, 304, 944 P. 2d 1110 1997)). Here, Rader told Bean that he started the fire when he was drunk and that his wife had also The trial court allowed Bean to testify to these statements because it been burned. determined that although the statements would subject Rader to embarrassment, " the jury' s right to receive full information and make their own judgment, and the public interest in all of the facts surrounding the RP at 133. disclosure charges at issue here" outweighed the benefits of the privilege for Rader. 1 Rader argues the trial court improperly balanced the public' s interest in full against only his potential embarrassment if the statements were revealed. In its written order, however, the trial court noted that the " privilege has been overcome and broken in this case by weighing the conflicting public policy issue of confidentiality and production [ of] full information for a jury to make an informed decision." CP at 30. Further, the trial court heard extensive argument on the balancing test and cited to multiple legal authorities that discuss the balancing test when giving his oral ruling. Accordingly, Rader' s argument that the trial court improperly considered only his potential embarrassment fails. 14 43332 -0 -II The trial court properly balanced the public' s interest against the benefits of the privilege because the purpose of the privilege of encouraging full disclosure for proper medical treatment will not be promoted here and Rader' s statements will be no more embarrassing than the charges already brought against Rader. See State v. Boehme, 71 Wn.2d 621, 637, 430 P. 2d 527 ( 1967). Bean' s ability to provide proper treatment was unaffected by Rader' s statements that he started that his the fire not how the fire had and February wife was also started. ") burned. See 2 RP 262 ( " What I focused on as a provider was Whereas Bean noted that Rader' s statement that he was burned on 13 ( four days before seeing Bean) particularly important to his treatment. was Thus, the purpose of the privilege of promoting proper treatment by facilitating full disclosure of information is not served by excluding Rader' s statement that he started the fire and his wife was also burned. As noted in Dejarlais, the public' s interest in preventing domestic violence is great due to the public problems it creates. Accordingly, we hold the trial court properly exercised its discretion when balancing the public' s interest in full disclosure against the benefits of the privilege and properly admitted Rader' s statements to Bean. AGGRAVATING FACTOR V. Rader argues there was insufficient evidence to prove the aggravating factor that either the arson or children." the unlawful imprisonment " occurred within sight or sound of the victim' s ... minor Appellant' s Br. at 50. We review a jury's special verdict finding the existence of an aggravating circumstance under the sufficiency of the 143 ( 2010); standard record. "). see also range RCW 9. 94A. 585( 4) ( if " the Under this evidence standard. State v. Stubbs, 170 Wn.2d 117, 123, 240 P. 3d stating that we may reverse a sentence outside of the reasons supplied by the sentencing court are not supported by the standard, " we review the evidence in the light most favorable to the State" 15 43332 -0 -I1 to determine whether any rational trier of fact could have found the presence of the aggravating circumstances beyond a reasonable doubt. See State v. Yates, 161 Wn.2d 714, 752, 168 P. 3d 359 2007) ( quoting State Varga, 151 Wn.2d 179, 201, v. 86 P. 3d 139 ( 2004)). " A claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably can be drawn therefrom." and on direct issues evidence are of v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). deemed equally reliable. Yates, 161 Wn.2d conflicting testimony, credibility State evidence. State v. of witnesses, at 752. Circumstantial We defer to the jury and the persuasiveness of the Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004) ( citing State v. Cord, 103 Wn.2d 361, 367, 693 P. 2d 81 ( 1985)). The trial court may impose an exceptional sentence when certain aggravating factors are One RCW 9. 94A. 535. present. domestic and violence ... one of the aggravating factors or more of the states: " following was The current offense involved present: ... ( ii) The offense occurred within sight or sound of the victim's or the offender' s minor children under the age of eighteen years[.]" must prove to the RCW 9. 94A. 535( 3)( h)( ii). jury beyond a reasonable This is an aggravating circumstance that the State doubt. RCW 9. 94A.537( 3). When a jury finds this aggravating circumstance, the court may sentence the offender to a term of confinement up to the statutory maximum substantial and for the underlying compelling reasons conviction " justifying if it finds . . . an exceptional sentence." that the facts found are RCW 9. 94. 537( 6). Although it is clear H.R.' s daughter did not see the crimes, the evidence and testimony support a finding that her daughter heard the crimes happen. A rational trier of fact could have found H.R.' s daughter was awakened by Rader slamming open H.R.' s bedroom door and threatening to put a bullet in her head. A rational trier of fact could also have found that H.R.' s daughter heard Rader hitting H.R.' s head on the counter, then throwing her to the floor, and 16 43332 -0 -II lighting her on fire. The testimony that H.R. heard her daughter moving around in her bedroom, H.R. screaming after Rader lit her on fire, and the terror H.R.' s daughter exhibited when H.R. was upstairs after the crimes also support a determination that a rational trier of fact could have found H.R.' s daughter heard the arson and unlawful imprisonment crimes. Accordingly, we hold the there was sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that H.R.' s daughter heard the crimes being committed. VI. SAG IssuE Rader contends he should have only been given one point for the three violations of the no contact order on August 18, 2011, which he plead guilty to, because they should be deemed other current offenses under 9. 94A. 525( 1). RCW RCW 9. 94A. 525( l) provides that c] onvictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed ` other current offenses' within the meaning of RCW 9. 94A. 589." RCW 9. 94A.589( 1) states that when a person is sentenced for " two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score," unless the trial court enters a finding that some or all of the current offenses encompass the same criminal conduct, in which case those offenses shall be counted as one crime. One exception to this rule is in domestic violence cases. Under RCW 9. 94A. 525( 21)( violence repetitive offense, domestic proven after domestic the trial violence no where the present conviction is for a felony domestic court should "[ offense August 1, 2011." violence c), contact as c] ount one point for each adult prior conviction for a defined in RCW 9. 94A.030 ... [ domestic Here, Rader' s order RCW, 26. 50. 110( 1) under 17 that] was plead and violence offense violation of a pretrial falls within the definition of 43332 -0 -II RCW 9. 94A.030, and he committed and pleaded guilty to the violations after August 1, 2011. The trial court did not enter a finding that the three violations of the no contact order encompass the same criminal conduct. Thus, Rader misinterpreted RCW 9. 94A.525( 1) and instead his three convictions for his violation of the no contact order are considered prior offenses and the trial court properly assigned one point for each of the three offenses under RCW 9. 94A.525( 21)( c). Because Rader' s abuse of R.R. and H.R. do not have any distinctive features, and instead, only represent what is commonplace for domestic violence, the trial court erred by admitting Rader' s prior misconduct toward R.R. as part of a common scheme or plan under ER 404(b). We reverse and remand for further proceedings. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: t Maxa, J. 4 Schindler, J. V.
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