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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, ) No. 74944-7-1 ) Respondent, )

) DIVISION ONE v. )

) LESLIE GUY WILSON, ) PUBLISHED OPINION ) Appellant. ) FILED: October 30, 2017

) MANN,J.— Leslie Wilson appeals his convictions for rape of a child in the first degree and attempted rape of a child in the first degree. The evidence of attempted rape, including the child's statements to an interviewer and the reasonable inferences that can be drawn from those statements, is sufficient to sustain the conviction. Nevertheless, because the jury was not properly instructed on the elements of attempt, and the trial court abused its discretion in admitting evidence of prior sexual misconduct,we reverse both convictions and remand. FACTS Claudine Wilson has cared for her granddaughter, B.E.,since she was born

on January 29,2006. In 2010,when B.E.wasfour years old, Claudine married LeslieNo.74944-7-1/2

Wilson) Wilson moved into Claudine's home in Auburn,Washington which Claudine shared with several other family members. Claudine,Wilson,and B.E.shared a bedroom. Claudine and Wilson slept in a king size bed. B.E. had her own bed in the

same room,but sometimes sleptwith Claudine and Wilson. Claudine has limited physical mobility due to a back injury and early in the marriage,Wilson often assisted Claudine with household chores and taking care of B.E. In the mornings,Wilson sometimes let Claudine sleep in and got up to help B.E. get readyfor school. Wilson and B.E.appeared to get along well. The marriage eventually deteriorated, however, in part due to Wilson's alcohol use. Wilson left the household in July 2012. Aboutfive months later, in December 2012,just after Claudine spoke to Wilson on the telephone, B.E.told Claudine that Wilson had touched her. Claudine reported B.E.'s disclosure to Child Protective Services (CPS)several weeks later. Following that report,a CPS social worker came to Claudine's home and attempted to speak to B.E.about the abuse allegation in order to assess her safety. B.E.was extremely reluctantto discuss the matter buteventually said thatWilson touched her in her vaginal area,which she indicated by pointing. Carolyn Webster,a child interview specialist,then interviewed B.E. The interview was recorded. B.E.,who was six years old at the time,again expressed reluctance to talk aboutwhat happened with Wilson,but admitted that "Papa had sex

1 Because Claudine and Leslie Wilson have the same last name,for clarity we refer to Claudine by her first name. -2-No. 74944-7-1/3

with [her]."2 She said it happened "[m]ore than one time."•B.E.said thatWilson was "really drunk"and she was still in preschool. According to BE.,she and Wilson were waiting for the school bus and were the only people awake in the house. B.E.told Webster that Wilson pulled down her pants and his pants and he touched her "spot" with his "spot." B.E.described being in the living room on her back on the sofa while Wilson's body went up and down. She said it hurt her spot. When the bus came, Wilson got a paper towel to wipe her. B.E.said thatWilson needed to wipe her spot because he "used a thick lotion on his spot." B.E.also said that Wilson touched her spot with his finger,that his finger went "deep down into [her]spot,"and it hurt. Wilson told her she could nottell anyone about what happened. B.E. also described a separate incidentthattook place in Nana's bedroom, which was also her bedroom. Webster asked B.E. ifWilson wanted her to "do something to his spot,"and B.E. replied that Wilson wanted her to "suck on it." B.E. said Wilson told her to "suck on it like a sucker." When B.E.said no,Wilson said to "go ahead." After B.E.still refused,Wilson said "okay." Two health care providers examined B.E.shortly after she disclosed the abuse to her grandmother. Dr. Sandra Ritland,a primary care physician,examined B.E. in January 2013. Dr. Ritland performed a vaginal exam. She noticed an "abrasion"on each side ofthe vagina that had the appearance ofa "rug burn or a scrape." Dr. Ritland referred B.E.to a hospital for a sexual assaultexamination.

2 During her interview, B.E. referred to Claudine as "Nana"and Wilson as "Papa." -3-No.74944-7-1/4 Pediatric nurse practitioner at Mary Bridge Hospital, Michelle Breland, performed the sexual assault examination. Before the exam,Breland asked B.E. ifshe had any "owies"on her body and B.E.said only on her "spot," pointing to her genital

area. B.E. refused to provide details, but when Breland asked if someone "did something"to her "spot,"she responded,"Papa." Breland said that B.E.'s exam was "essentially normal,"which she explained did not mean that sexual assault did not

occur because hymenal tissue heals quickly. B.E.also tested negative for several sexually transmitted diseases, including chlamydia,gonorrhea,and syphilis. The State charged Wilson with two counts of rape ofa child in the first degree and one count ofattempted rape of a child in the first degree. Claudine testified at trial that B.E.suffered from various "vaginal issues" between 2010 and 2013. In particular, Claudine said B.E. had rashes, urinary tract infections,and at one point,a blister in her vaginal area. Claudine also said that several months after he left the household,Wilson reported that he had sores in his genital area. Dr. Ritland confirmed that she treated B.E.several times for urinary symptoms and vaginal rashes shortly before and after the December 2012disclosure. Dr. Ritland testified that she was "concerned"about possible sexual abuse because of B.E.'s frequent and persistent urinary and vaginal symptoms. Dr. Ritland also testified that B.E. had gained a substantial amount ofweight in the three years following the disclosure ofabuse and said that B.E.'s obesity raised a "red flag" because ofa correlation between sexual abuse and obesity.

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B.E.was nine years old at the time oftrial. She could not remember any of her previous statements or medical examinations. She remembered only telling her grandmother something that made her grandmother cry. B.E.eventually admitted that Wilson did something to her "spot"that she did not like, but she could not describe what it was. The jury convicted Wilson of one count of rape ofa child and attempted rape ofa child, and acquitted him on the second count of rape ofa child. Wilson appeals. ANALYSIS Instructional Error Wilson argues that the trial court erred in failing to instruct the jury on the definition and elements of attempt. Failure to instruct the jury on every element of the crime charged is constitutional error. State v. Aumick, 126 Wn.2d 422,429, 894 P.2d 1325 (1995). We review challenged jury instructions de novo. State v. Mills, 154 Wn.2d 1, 7, 109 P.3d 415 (2005). Attempt consists oftwo elements:(1)intent and (2)a substantial step. RCW 9A.28.020(1). In this case,however,the jury instructions did not define attempt nor inform the jury of these elements of an attempted crime. There was a jury instruction defining "substantial step," but no instruction connected that concept to the offense of attempted rape of a child. Due process requires that the jury must be informed of all elements of an offense and instructed that each element must be established by proof beyond a reasonable doubt. State v. Scott, 110 Wn.2d 682,690,757 P.2d 492(1988). The failure to instruct the jury that intent is an element of attempted rape is an error of -5-No. 74944-7-1/6

constitutional magnitude. Aumick, 126 Wn.2d at 430; see also State v. Jackson, 62 Wn.App. 53,59,813 P.2d 156 (1991). As we held in State v. Stewart: Although it is not necessary to give an instruction defining an element whose meaning is one of common understanding,we cannot say that the average juror knows as a matter of common knowledge that 'attempt'contains the two separate elements.The court's failure to set out these elements was an error of constitutional magnitude. 35 Wn.App. 552,555,667 P.2d 1139 (1983)(citation omitted). Accordingly, the State concedes,and we agree,that the instructional error requires reversal ofWilson's attempted rape conviction. ER 404(b)Evidence Wilson contends that the trial court erred in admitting a dissimilar and unfairly prejudicial prior act of sexual misconduct as a purported common scheme or plan under ER 404(b). We agree. This court reviews a decision to admit evidence under ER 404(b)for abuse of discretion. State v. Thang, 145 Wn.2d 630,642,41 P.3d 1159 (2002). "In doubtful cases,the evidence should be excluded."Thanq, 145 Wn.2d at 642. Before trial, the State informed the trial court of its intent to present evidence of

a sexual remark Wilson allegedly made to B.E.'s older cousin,S.H. Specifically, S.H. claimed that when she was 11 or 12years old and wearing a bathing suit,Wilson remarked that she should not "wear that stuff around [him]because it gets—[him]so excited." The State argued that this evidence showed thatWilson had a common scheme or plan to sexually assault young girls. The defense argued that the evidence showed only propensity and was inadmissible. The court ruled that S.H.'s testimony demonstrated a common scheme or plan and was admissible under ER 404(b). -6-No. 74944-7-1/7

ER 404(b)prohibits the use of evidence of other crimes,wrongs,or acts to prove the character of a person in order to show action in conformity therewith. The

same evidence may be admissible for other purposes, however,depending on its relevance and the balancing of the probative value and danger of unfair prejudice. State v. Gresham, 173Wn.2d 405,420,269 P.3d 207 (2012). One accepted "other purpose" under ER 404(b)is to show the existence of a common scheme or plan. Gresham, 173Wn.3d at 421-22. "[E]vidence that a charged crime was carried out in

a manner devised by the defendant and used by him more than once has a distinct and additional probative value [other than showing propensity]thatjustifies its admission." State v. Slocum, 183 Wn.App.438,456, 333 P.3d 541 (2014). The prior misconduct and the charged crime must share a sufficient number of "markedly and substantially similar"features so that the similarities can naturally be explained as individual manifestations of a general plan. Gresham, 173Wn.2d at 422. The prior misconduct must be sufficiently similar to the charged crime,or else the evidence of misconduct is not probative ofwhether the alleged act occurred. See State v. DeVincentis, 150 Wn.2d 11, 20,74 P.3d 119 (2003). Similarity of results is insufficient and the evidence must show more than a general "plan"to molest children. Gresham, 173Wn.2d at 422; Slocum, 183 Wn.App.at 453. The incidents described by B.E. and S.H.did not share "markedly and substantially similar"features that can naturally be explained as individual manifestations of a general plan. B.E. reported recurring incidents of sexual abuse. S.H. reported an isolated, sexually -oriented remark. There was a significant difference in the victims' ages when the incidents occurred. The evidence was -7-No.74944-7-1/8

similar only in the respect that it tended to show Wilson's sexual attraction to minors. S.H.'s testimony did not demonstrate the existence of a common scheme or plan. In view of the limited evidence presented to the jury, we cannot say that the admission of the ER 404(b)evidence did not materially affect the trial within reasonable probabilities. See Gresham, 173Wn.2d at 433,269 P.3d 207 (under the applicable nonconstitutional harmless error test, the question is whether within reasonable probabilities, the outcome of the trial would have been materially affected had the

error not occurred). The State concedes that Wilson's conviction of rape of a child must be reversed because the trial court erroneously admitted prejudicial evidence under ER 404(b). We accept the State's concession and reverse Wilson's conviction of rape of a child. Sufficiency ofthe Evidence Wilson also contends that insufficient evidence supports his conviction of attempted rape of a child, and accordingly, the double jeopardy clause prohibits his retrial on the charge. See State v. Wriqht, 165 Wn.2d 783,792,203 P.3d 1027 (2009). Due process requires the State to prove beyond a reasonable doubt every element of a crime. State v. Rodriquez, 187 Wn.App. 922,930, 352 P.3d 200, review denied, 184 Wn.2d 1011 (2015). A challenge to the sufficiency of the evidence admits the truth of the evidence presented at trial, which we view in the light mostfavorable to the prosecution. State v. Mines, 163Wn.2d 387,391, 179 P.3d 835 (2008). We will reverse a conviction on this ground only if we find that no -8-No. 74944-7-1/9

rational trier offact could have found the person guilty beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,220-22,616 P.2d 628 (1980). In analyzing a claim of insufficiency, we draw no distinction between circumstantial and direct evidence because both are considered equally reliable. State v. Bencivenga, 137 Wn.2d 703,711,974 P.2d 832 (1999). The credibility of the witnesses and the weight to be given to the evidence are matters for the finder of fact. Bender v. City of Seattle, 99 Wn.2d 582,594-95,664 P.2d 492 (1983). We defer to the trier offact's decisions with respect to the reasonable inferences to draw from the evidence. State v. Bryant, 89 Wn.App. 857,869,950 P.2d 1004 (1998). Attempt consists of two elements:(1)intent, and (2)a substantial step. Aumick, 126 Wn.2d at 429. Thus, in order to establish attempted rape of a child in the first degree,the State had to prove beyond a reasonable doubt that Wilson intended to have sexual intercourse and took a substantial step toward having sexual intercourse with a child under the age of twelve. RCW 9A.44.073(1); RCW 9A.28.020(1); Aumick, 126 Wn.2d at 429. Sexual intercourse includes "any act of sexual contact between persons involving the sex organs of one person and the mouth . . . of another whether such persons are of the same or opposite sex." RCW 9A.44.010(1)(c). A substantial step is an act that is "strongly corroborative" of the actor's criminal purpose. State v. Johnson, 173Wn.2d 895,899,270 P.3d 591 (2012). Mere preparation to commit a crime is not an attempt. State v. Workman, 90 Wn.2d 443,449-52,584 P.2d 382 (1978). But "[a]ny slight act done in furtherance of a

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crime constitutes an attempt if it clearly shows the design of.the individual to commit the crime." State v. Price, 103Wn.App. 845,852, 14 P.3d 841 (2000). Wilson primarily relies on State v. Grundy, 76 Wn.App. 335,886 P.2d 208 (1994),to argue that his words,as described by B.E.,do not amount to a substantial step. In Grundy, an undercover officer posing as a drug dealer approached the defendant and asked what he wanted. Grundy said he wanted "20." The officer asked,"20 what?"and Grundy replied, "20 of coke." Grundy, 76 Wn.App.at 336. The officer asked to see Grundy's money and Grundy asked to see the drugs first. The officer then arrested Grundy and a jury later convicted him of attempted possession of cocaine. On appeal, Grundy argued there was insufficient evidence that he took a substantial step toward possession of a controlled substance.This court agreed, pointing out that Grundy did not approach the officer and asked for cocaine only in response to the officer's offer to procure drugs. This court held thatwhile Grundy's words "evidenced an intent to acquire possession of cocaine,"they were "insufficient, without more,"to show a substantial step. Grundy, 76 Wn.App. at 337. Wilson contends that like Grundy and the undercover police officer, the evidence viewed in the light mostfavorable to the State shows only that he and B.E.

were in the "negotiation stage." But this characterization removes Wilson's words from the context of his relationship with B.E. Whereas Grundy merely engaged in negotiation with an unknown adult,Wilson's statements must be viewed through the lens of his position as an adult caretaker in B.E.'s household. B.E.was approximately five years old at the time: According to B.E.,Wilson did not merely -10-No. 74944-7-1/1 1

ask if she wanted to have sexual contact. He directed her to do so. And while it is true that there is no evidence that Wilson manipulated B.E. or was otherwise responsible for her being in the bedroom,a rational juror could infer from the immediacy ofWilson's directives—"suck it like a sucker"and "go ahead"—that Wilson was prepared for sexual contact at that moment. In other words,the jury could reasonably infer from B.E.'s statements that she and Wilson were isolated and that Wilson exposed himself to B.E. Wilson also relies on State v. Jackson, 62Wn.App. 53,57,813 P.2d 156 (1991). Jackson persuaded a 14-year -old girl to enter a bedroom,using a pretext, then followed her into the room. Jackson, 62 Wn.App.at 55. Jackson approached the girl and ordered her to lift her skirt or else he would kill her. Jackson, 62Wn. App.at 55. The girl said "no," backed up,and then screamed. Jackson, 62Wn. App.at 55. Jackson said he "was just joking," and left. Jackson, 62Wn.App.at 55. While upholding Jackson's conviction of attempted rape,this court characterized the evidence as "slim" in comparison with the evidence in some other reported cases involving egregious violence. Jackson, 62Wn.App. at 57. Nothing in Jackson establishes a minimum threshold of proof in order to sustain a conviction of attempted rape or requires proof of a ruse,enticement,or other purposeful isolation in order to sustain a conviction. Jackson standsfor the proposition that a reasonable jury may infer the elements of attempt even without evidence of physical contact or an express statement of intent. Here,Wilson clearly expressed his intent to have sexual intercourse with B.E.,and in the context of the relationship and the circumstances, a rational jury could conclude that he took a -11-No. 4944-7-1/12

subs suffi

reve prohi

addit beca antial step toward the commission of the crime. The evidence in the record is lent to support Wilson's conviction for attempted rape of a child. While we e the conviction due to the erroneous instruction, double jeopardy does not it his retrial on the charge. Wright, 165 Wn.2d at 792.

Statement ofAdditional Grounds Although difficult to parse,Wilson appears to claim in his statement of onal grounds that (1)he was deprived of the effective representation of counsel

se counsel failed to procure records and failed to conduct an adequate investigation,(2)he was wrongly arrested by state law enforcement on a probation viola ion when only federal authorities were authorized to arrest him,and (3)the Stat made improper statements about his prior murder conviction and illegally seiz d his correspondence. Wilson's vague allegations are insufficient to inform the court of the "nature and occurrence of the alleged errors." RAP 10.10(c). Also beca se these allegations appear to involve matters outside the record on appeal, they annot be addressed on direct review. State v. McFarland, 127 Wn.2d 322, 338 .5, 899 P.2d 1251 (1995)("a personal restraint petition is the appropriate

mear1 is of having the reviewing court consider matters outside the record"). CONCLUSION We reverse Wilson's convictions and remand. Because of our disposition,we decline to address Wilson's claim of error based on the admission of testimony abou a connection between obesity and sexual abuse. We also do not address the scriv ner's error in the judgment and sentence indicating that domestic violence was

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"pled and proved"for both counts. Because the State has not substantially prey iled, we deny costs on appeal. RAP 14.2. Reversed and remanded.

WE ONCUR:

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