IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. ERIC STEVEN SCHNEIDER, Appellant. No. 71822-3-1 DIVISION ONE

UNPUBLISHED OPINION FILED: April 25, 2016 Leach, J. — Eric Schneider appeals his convictions on two counts of second degree rape of a child, one countof third degree rape of a child, and one count of first degree incest. Primarily, he challenges the sufficiency of the evidence to support multiple convictions and two trial court decisions about admitting evidence: (1) the admission of ER 404(b) evidence to show a common scheme or plan and (2) the exclusion ofevidence ofthe victim's report of a rape by a third party. The record sufficiently supports each conviction and each challenged evidence decision. But because the trial court did not make an individualized inquiry into Schneider's ability to pay costs, we reverse that partof his sentence imposing costs and remand for further proceedings consistentwith this opinion.No. 71822-3-1/2

FACTS Substantive Facts J.S. was born March 1, 1995, to Elizabeth.1 In December2005, Elizabeth married Eric Schneider. Schneider often took care of J.S. and her two siblings while Elizabeth worked nights. 

### J.S. reported the following facts in police interviews and trial testimony. 

### Schneider began sexually abusing J.S. after he married her mother. The first incident occurred while Schneider and the three children were driving at night to 

### pick up Elizabeth. After Schneider stopped the car near the woods, he told the 

### boys to get out and play. He then took J.S. onto his lap and attempted to penetrate her vaginally. When she told him that hurt too much, he penetrated 

### her anally instead. Later, again in a vehicle, Schneider raped J.S. vaginally for thefirsttime aftertaking herto a father-daughterdance. 

### J.S. could recall only these occurrences in detail; "[t]he rest ofthe times, 

### theyjustblended in." She testified thatthe rapes occurred once perweek inthe beginning and increased to three to four times per week when she was 14 and 15. Schneiderand J.S. had oral sex. Schneiderpenetrated J.S. using sex toys. At other times, he penetrated her with a handgun. He asked J.S. to wear her



### 1To protect the anonymity of abuse victims, we use first names for their adult relatives. -2-No. 71822-3-1/3


### mother's lingerie and high-heeled shoes. He showed her pornography and asked herto imitate what it showed. Schneider and J.S. often had sex in vehicles, but Schneider also took her 

### to empty houses underconstruction andto motel rooms. Schneideralso had sex with J.S. in her parents' bedroom and her own bedroom and, less often, in the living room. 

### J.S. described Schneider as being gentle with her at first but violent as she grew older. He hit her. He put a belt around her throat and held itduring
sex. He penetrated herwith a sextoy inone orificewhile he was penetrating her in another. After he raped her in the shower, he urinated on her. Once, he carved his initials on her pubis with a knife, making her bleed. When J.S. told 

### Schneider she wanted to stop having sex, Schneidertold her he would kill her if 

### she told anyone about the abuse. Schneider also told J.S. he had been "fixed" 

### so they did notneedto use condoms.2 J.S. indicated in interviews that Elizabeth's ex-partner, John, molested J.S. when she was five years old. J.S. told Schneideraboutthe abuse. In2011, Schneider took her to an appointment with Torr Lindberg, a mental health counselor. During the session, J.S. told Lindberg that Schneiderhad not abused



### 2J.S. also reported, accurately, that Schneideris circumcised. -3-No. 71822-3-1/4



### her.3 J.S. also spoke to Annetta Spicer, formerly Schneider's family law lawyer,


### as part of a child custody dispute between Schneider and his ex-wife, Jessica. Spicer told J.S. that Jessica's sister, A.S., had alleged Schneider abused her. J.S. told Spicerthat Schneiderhad notabused her. J.S. told her mother about Schneider's abuse in October 2011. Schneider had last raped her about two weeks earlier, after Schneider and Elizabeth had 

### separated. J.S. reported the rapes during a sexual assault examination with Nurse Joanne Mettler the next week. Nurse Mettler examined J.S. for sexually transmitted diseases, infections, and acute and healed injuries. She found 

### nothing out of the ordinary. She later testified that it is common to find no physical evidence of violent rape when examining victims. Mettler also did not
see any sign of scarring inJ.S.'s pubic area. Mettlertestified that J.S.'s hymen "looks very thick and very wavy and redundant." She further explained that because tissue heals quickly in the vaginal and anal areas, J.S.'s reports of 

### bleeding afterintercoursewere not inconsistentwithherlack ofphysical signs. Procedural Facts The State charged Schneider with two counts of rape of a child in the 

### second degree between June 1, 2007, and February28, 2009, one countofrape of a child inthethird degree between March 1, 2009, and February 28, 2011, and 

### 3 J.S. testified that she did not tell Lindberg about the abuse because Schneiderwas outside in the car and she was afraid ofhim. -4-No. 71822-3-1/5



### one count ofincest inthe first degree between March 1, 2011, and October 15,
2011. Before trial, the trial court excluded J.S.'s statements to Mettler and 

### Lindberg that John abused her. The court found that those statements' risk of unfair prejudice, confusion, or misleading substantiallyoutweighedtheir probative value.4

### The trial court admitted A.S.'s testimony that Schneider raped her when 

### shewas a young girl. The trial court found that the alleged rapes of A.S. and J.S.
were "markedly similar" and ruled that the State could present evidence of the earlier rapes to show "a general plan, a design to fulfill [Schneider's] sexual compulsions." A.S.'s sister Jessica, married Eric Schneider when A.S. was between 7 

### and 9. Schneiderand Jessica moved to Spokane when A.S. was about 11. A.S. visited from California in November and December 1999, when Jessica was 

### about to have her third child.5 A.S. reported that Schneider forcibly raped her twice during thattrip. 

### Thefirst time, as A.S. slepton a couch inthe living room, Schneidercame to her, liftedthe covers, lay on her, pulled down her pants, and had vaginal sex with her. A.S. cried and tried to stop it, but Schneider put his hand over her 4The courtdeclined to revisitthis ruling attrial. 5The State conceded this date in its closing. -5-No. 71822-3-1/6

mouth or throat and held her hand over her head. Schneider told her that if she 

### told anyone, he would hurt Jessica or Jessica's daughters. A.S. also reported that during that trip Schneider raped her inthe bedroom he shared with Jessica and in the children's bedroom. The second time, Schneider asked A.S. to dress in her sister's lingerie and heels, but she refused. When A.S. also refused to have sex, Schneider again forcibly raped her. When Jessica and Schneider separated in April 2000, Jessica moved to Boardman, Oregon. A.S. visited her there. After she arrived, Schneider unexpectedly came and stayed. Schneider raped A.S. multiple times in Oregon, though she remembered only one incident in detail. While the family
was riding horses, A.S. got horse manure on herself. Jessica told her to go to the apartment with Schneider. At the apartment, Schneider pushed A.S. down and raped her on the living room floor. A.S. first reported the rapes in2003. She 

### gave statements to the Riverside police that year and later to police in Oregon.6 Neitherdepartment initiated charges. A.S. testified she did not know J.S., had never spoken with her, and had not read about J.S.'s allegations against Schneider. A.S. had, however, reviewed legal documents for the case. The State told the jury in its opening 

### 6A.S. reported in a 2014 interviewthat Schneiderput his hand around her neck during sex; that Schneider raped her orally and anally, as well as vaginally; that he had videotaped the rape in Schneider and Jessica's bedroom; and that Schneider asked her to wear her sister's underwear. -6-No. 71822-3-1/7

statement that A.S. and J.S. did not know each other, had never met, and had


### neverspokento each other.7 In his defense, Schneider offered Lindberg's testimony that J.S. told him Schneider had not abused her. He also offered testimony from both Lindberg 

### and Spicer that J.S. had denied Schneider abused her. But the trial court 

### excluded Spicer'stestimonythat shetold J.S. aboutA.S.'s allegations.8 The jury found Schneider guilty on all four counts. The court sentenced 

### Schneider to life in prison with a minimum term of280 months. The court also imposed $1,487.50 infinancial obligations. Itlaterfound Schneider indigent and thus entitled to public funds to paythe costs oftranscripts for his appeal. STANDARD OF REVIEW To affirm a criminal conviction, this court mustfind thatthe record includes sufficient evidence for a reasonable person to find the State has proved every 

### element of the crime beyond a reasonable doubt.9 We view the evidence in the light most favorable to the State.10 A party challenging sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences



### 7In closing, the State reiterated there was "no evidence that [J.S.] knew anything about [A.S.] orthat [A.S.] knew anything about [J.S.]." 8The court did not offer its reasons. 

### 9State v. Jensen. 125Wn. App. 319, 325-26, 104 P.3d 717 (2005). 10 State v. Salinas. 119Wn.2d 192, 201, 829 P.2d 1068 (1992). -7-No. 71822-3-1/8

from the evidence.11 We deferto the trier offact to resolve conflicting testimony, 

### witness credibility, and the persuasiveness of evidence.12 This court reviews questions of law de novo, including alleged violations of
a defendant's Sixth Amendment rights to present a complete defense and 

### confront witnesses.13 We also review de novo, as a question of law, the trial 

### court's interpretation of an evidentiary rule.14 But we review the trial court's decision to admit or exclude evidence for abuse of discretion.15 Abuse occurs when the trial court makes a manifestly unreasonable decision or bases its 

### decision on untenablegrounds or reasons.16 ANALYSIS Sufficiency ofthe Evidence To Support Unanimous Verdicts First, Schneider challenges the sufficiency of the evidence to support a unanimous verdict on all four counts. The State had to prove that Schneiderhad sexual intercourse with J.S. twice when she was between 12 and 14, that he had intercourse with J.S. when she was between 14 and 16, and that he had intercourse with J.S. between March 1 and October 15, 2011.


### 11 Statev. Edwards. 171 Wn. App. 379, 401, 294 P.3d 708 (2012). 12 State v. Thomas. 150Wn.2d 821, 874-75, 83 P.3d 970 (2004). 13 State v. Jones. 168Wn.2d 713, 719, 230 P.3d 576 (2010). 14 Statev. Gunderson. 181 Wn.2d 916, 922, 337 P.3d 1090 (2014). 15Gunderson. 181 Wn.2d at 922. 

### 16 Gunderson. 181 Wn.2d at 922 (quoting Statev. Brown. 132 Wn.2d 529, 572, 940 P.2d 546 (1997)). -8-No. 71822-3-1/9



### The constitutional right to a jury trial requires that thejury be unanimous


### as to the specific act the defendant committed foreach crime.17 To protect this right, the State may elect an act to rely on for conviction. Otherwise, the court 

### must instruct the jury "that all 12 jurors must agree that the same underlying 

### criminal act has been proved beyond a reasonable doubt."18 "In sexual abuse
cases where multiple counts are alleged to have occurred within the same charging period, the State need not elect particular acts associated with each count so long as the evidence 'clearly delineate[s] specific and distinct incidents 

### of sexual abuse' during the charging periods."19 When the State charges identical counts, the trial court must also instruct the jury "that they are to find 

### 'separate and distinctacts' foreach count."20 Schneider concedes that the trial court gave the required instructions but 

### argues thatthe State presented insufficientevidence attrial forthejury to convict him unanimously. "Evidence is sufficientto support a conviction if, afterviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable
17 State v. Petrich. 101 Wn.2d 566, 572, 683 P.2d 173 (1984) holding modified by Statev. Kitchen. 110Wn.2d 403, 756 P.2d 105 (1988). 18Petrich. 101 Wn.2dat572. 

### 19 State v. Haves. 81 Wn. App. 425, 431, 914 P.2d 788 (1996) (alteration in original) (quoting State v. Newman, 63 Wn. App. 841, 851, 822 P.2d 308 (1992)). 

### 20 Hayes, 81 Wn. App. at 431. -9-No. 71822-3-1/10


### doubt."21 Due process imposes three requirements to sustain a conviction of a residentchild molesterbased on generic testimonyfrom an alleged victim: 

### First, the alleged victim must describe the kind of act or acts with sufficient specificity to allow the trier of fact to determine what offense, ifany, has been committed. Second, the alleged victim must describe the number of acts committed with sufficient certainty to support each ofthe counts alleged by the prosecution. Third, the alleged victim must be able to describe the general time 

### period in which the acts occurred.[22] These requirements balance the due process rights of accused resident child molesters againstthe risk ofimmunizing themfrom prosecution due to the nature oftheir crimes.23 Victims' undifferentiated accounts of multiple incidents of abuse may fail this test. InState v. Edwards.24 Division Two ofthis court used this testto uphold

a defendant's conviction for one count of child molestation and affirm the trial court's vacation of his conviction on a second count. After thejury convicted on two identical counts ofchild molestation, the trial courtfound insufficientevidence 

### existed for juror unanimity on count 2 and vacated that conviction.25 Division

21 Haves. 81 Wn. App. at430. 22 Haves. 81 Wn. App. at438; see People v. Jones. 51 Cal. 3d 294, 315- 16, 792 P.2d 643, 270 Cal. Rptr. 611 (1990) (holding that specifics regarding date, time, place, and circumstance are factors regarding credibility, not necessary elements that need to be proved to sustain a conviction). 

### 23 Haves. 81 Wn. App. at 438. 

### 24 171 Wn. App. 379, 403, 294 P.3d 708 (2012). 25 Edwards, 171 Wn. App. at403. Division Two reviewed this decision de
novo. -10-No. 71822-3-1/11



### Two decided that (1) based on the victim's undifferentiated accounts of 10-15 

### incidents, the jurors could not have differentiated between the alleged acts; (2) 

### only the victim's testimony about the first time the defendant abused her was specific enough to allowthejury to findthe defendant committed the crime; and (3)apartfromthe victim'stestimonythatthefirst incidentoccurredwhen shewas five or six, "[t]here was no other evidence defining the time period in which any other act occurred."26 Because the evidence did not "clearly delineate between 

### specific and distinct incidents . . . during the charging period," the trial court 

### properlyvacated count 2.27 

### Similarly, in State v. Jensen,28 Division Two affirmed two counts ofchild molestation but reversed a third count. The victim had testified to one incident where the defendantentered herroom and "touched herinher 'private spot'" and another where he entered her room "and touched her breast."29 The victim also testified that the defendant "touched her private area '[a] few times'" and had 

### entered her room at night twoothertimes.30 The court reversed the defendant's third conviction because the victim did not describe "with sufficient specificity" a third incident ofsexual contact.31 26 Edwards. 171 Wn. App. at402-03. 27 Edwards. 171 Wn. App. at403. 

### 28 125Wn. App. 319, 327-28, 104 P.3d 717 (2005). 29 Jensen. 125Wn. App. at 327. 30Jensen. 125Wn. App. at 327 (alteration inoriginal). 

### 31 Jensen. 125Wn. App. at 328.-11-No. 71822-3-1/12



### In contrast, here, sufficient evidence supports each conviction. First, a 

### rationaljurorwould be able to tell what crime Schneider committedfrom J.S.'s testimony. The State did not need evidence about details like times and places of the assaults; itwas enough that J.S.'s testimony described Schneider's sex acts with her "with sufficient specificity" to allow thejury to conclude that those acts constituted "intercourse." Unlike the witness in Edwards, who only described the defendant's acts on one occasion, J.S. described Schneider 

### penetrating her vaginally, anally, and orally, with his penis and with sex toys. 

### This is analogous to the victim'stestimony inHaves that the defendant "'puthis private part in mine.'"32 Coupled with J.S.'s description of the usual course of 

### conduct, that testimony satisfied the first prong.33 Likewise, the jury could determine the nature ofSchneider's acts for each countfrom J.S.'s testimony. The evidence also satisfies the second prong. In Haves, the victim testified that sexual intercourse occurred "at least 'fourtimes' and some '[t]wo or 

### three times a week' between July 1, 1990 and May 31, 1992."34 J.S. gave similar testimony. She estimated Schneider raped her three times per week when she
was 12 and 13, three or four times per week when she was 14 and 15, and continued after she was 16. Unlike the victim in Jensen. J.S. alleges more than
32 Haves. 81 Wn. App. at438. 33 Haves. 81 Wn. App. at438. 34 Haves. 81 Wn. App. at435 (alteration inoriginal). -12-No. 71822-3-1/13

two incidents of sexual contact. J.S. thus "describe[d] the number of acts 

### committedwith sufficient certainty to supporteach" count.35 The State's evidence against Schneider also satisfied the third prong. 

### Unlike in Edwards, where the State offered testimony about one specific incident when the victim was 5 or6 but "no evidence defining the time period inwhich any 

### otheractoccurred,"36J.S. described the general time period ofthe sex acts: she testifiedthat Schneiderraped herthreetimes perweekwhen shewas 12 and 13, and three or four times perweek when she was 14 and 15, and continuing after she was 16. 

### Insum, though J.S. could only provide details abouttwo specific incidents when Schneider raped her, she described the nature, frequency, and period of many others. Schneiderargues thatthis generic, undifferentiated testimony was not sufficient to support his convictions. But Washington courts have affirmed multiple count sexual assault charges where the State relied on similar generic 

### testimony.37 J.S.'s testimony satisfied the three-parttestforeach ofthe charging periods and counts charged.



### 35 See Haves. 81 Wn. App. at 438. 36 Edwards. 171 Wn. App. at403. 

### 37 Haves. 81 Wn. App. at431. -13-No. 71822-3-1/14

Admission ofSchneider's Alleged Prior Sexual Offenses under ER 404(b) 

### Schneidermakes two challenges to the trial court's admission ofevidence of accusations of earlier sexual offenses to show a common scheme or plan, as 

### permitted by ER404(b). First, he claims thatthe record does not support several findings offact the trial court made to support its decision. Second, he asserts 

### thatthe alleged earlieroffenses lacked enough similarity to the charged offenses to show a common scheme or plan. The Trial Court'sFindings ofFactforER 404(b) Analysis We review the trial court's findings of fact to see ifthe record contains 

### substantial evidence to support them.38 Substantial evidence is evidence of 

### sufficient quantity "topersuade afair-minded, rationalperson."39 The challenging party bears the burden of showing the absence of substantial evidence to 

### supportthe finding.40 Before jury selection, the trial court considered the State's request to 

### presentevidence ofA.S.'s accusations against Schneider. The parties agreed to the court's consideration of various interview transcripts, a police report and notes, a video recording, and an audio recording. After considering these 

### materials, the trialjudge provided a detailed oral decision explaining his decision
38 In re Pers. Restraintof Davis. 152Wn.2d 647, 679, 101 P.3d 1 (2004). 39 Davis. 152Wn.2dat679. 40Davis. 152Wn.2dat680. -14-No. 71822-3-1/15

to admit this evidence. Over five months after the trial concluded, the State 

### prepared and thetrialjudge signedfindings of fact and conclusions oflawfor this ER 404(b) decision. We address Schneider's challenges to the written findings
in order. 

### Finding 1 states that Schneiderwas charged with crimes alleged to have been committed between 2002 and 2011. In fact, the information alleged Schneider committed the crimes between 2007 and 2011. The trial court's oral 

### decision does notdescribe the charging period. Schneideroffers no explanation why this apparentscrivener's errorhas any significance. 

### Finding 2 states the rapes of A.S. occurred in 2001 and 2002. Schneider contends thatthe evidence shows thatthey occurred inlate 2000 and 2001. The trial court's oral decision makes no reference to the year of these events. The 

### trial court found significantthatboth A.S. and J.S. were prepubescentatthetime of Schneider's alleged rape of each. Schneider makes no argument that the 

### one-year difference was material to the trial court's decision or otherwise has significance. 

### Finding 5(b) states that A.S. and J.S. were both between the age of 11 and 13 when Schneiderfirstsexually assaulted each. Schneiderchallenges this based on a 2010 interviewwhere J.S. reported the abuse began atage 7. As the 

### State points out, J.S. reported in a 2012 interviewthat she first met Schneiderat -15-No. 71822-3-1/16



### age 10. More significant, the trial courtdid not rely on the specific age ofeither child to supportits decision, onlythat both were prepubescent. Schneiderfails to show how any erroraboutwhen the abuse started was material to thetrialcourt's decision or otherwise prejudiced him. 

### Finding 5(c) states, "Amongst other places, the defendant sexually assaulted each victim in the bedroom he shared with his then current wife, 

### providing him access." Schneider argues that the bedroom did not provide Schneider with access to J.S. because his earliest abuses of her occurred in 

### vehicles, empty houses, and motel rooms. Butthe record shows that a number, if not many, ofthe rapes ofJ.S. occurred inSchneider's home. Thus, substantial evidence supports this finding. In addition, the trial court's oral decision informs us about the trial court's reasoning. The bedrooms, vehicles, empty houses, and motel rooms all provided Schneider with access in a place where his victim was isolated from help orescape. Finding 5(d) states, "The defendant sought to obtain the silence of each victim with threats." Schneider complains that J.S. did not report that Schneider threatened her in "the early years." As the State notes, the record includes statements about threats without any limitation about when they occurred. Also, the trial court's finding does not say when the threats occurred, only that -16-No. 71822-3-1/17

Schneider made them to each victim. Schneider does not—and the record will not permit himto—question thateach victim reported threats. 

### Finding 5(j) states, "The defendant video taped his sexual assaults with both victims." Schneider contends that the record does not support this finding because A.S. did not report the videotape until years after the event and the State never found the videotapes. Schneider does not deny that each victim 

### reported videotaping. The trial court believed the victims, as did the jury later. Schneider does not show that the trial court abused its discretion by finding the victims credible. Thus, Schneiderfails to showthat any error infactfinding undermines the trial court's ER404(b) decision. The Trial Court's Application ofER404(b) 

### ER 404(b) generally prohibits admitting evidence ofothercrimes "toprove the character of a person in order to show action in conformity therewith." But the rule does allow admission of this evidence for other purposes, including as 

### proof of a common scheme or plan.41 The proponent of this evidence has the burden ofshowing a properpurpose. Before admitting the evidence, a trial court

must "(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought 

### 41 ER404(b); Statev. DeVincentis. 150Wn.2d 11, 17, 74 P.3d 119 (2003). -17-No. 71822-3-1/18 

### to be introduced, (3) determine whetherthe evidence is relevantto 

### prove an element of the crime charged, and (4) weigh the probative 

### value against theprejudicialeffect."[42] Schneiderdisputesthe trialcourt's resolution ofsteps 3 and 4. 

### A common scheme or plan exists "when an individual devises a plan and 

### uses it repeatedly to perpetrate separate but very similar crimes."43 The evidence must show "not merely similarity in results, but such occurrence of
commonfeatures thatthevarious acts are naturallyto be explained as caused by 

### a general plan ofwhich the charged crime and the prior misconduct are the individual manifestations."44 This level ofsimilarity must be substantial,45 though 

### the evidence need not show a unique method ofcommittingtheoffense.46 In State v. DeVincentis.47 the Supreme Court held the defendant's acts 

### bore sufficient similarities to the charged crimes because they showed "'that the 

### defendant had devised a scheme to get to know young people through a safe 

### channel,"' leading to"'greaterfamiliarity occurring in his ownhome.'" Thevictims were both between 10 and 13 years old. In both cases DeVincentis walked "around his house in an unusual piece ofclothing—bikini or g-string underwear"

42 State v. Slocum. 183 Wn. App. 438, 448, 333 P.3d 541 (2014) (internal 

### quotation marks omitted) (quoting State v. Gresham. 173 Wn.2d 405, 421, 269 P.3d 207 (2012)). 43 State v. Lough. 125Wn.2d 847, 855, 889 P.2d 487 (1995). 44Lough. 125 Wn.2d at 860. 45 DeVincentis. 150Wn.2d at 20. 46DeVincentis. 150Wn.2d at 20-21. 47 150Wn.2d 11, 22, 74 P.3d 119 (2003). -18-No. 71822-3-1/19 

### to get his victims used to his nearnudity.48 The trial court found he "'intended by the casual wearing of almost no clothes to reduce the children's natural 

### discomfort or negative reaction to such behavior.'"49 With both victims, the defendantasked for a massage or gave a massage in a secluded spot, such as a bedroom, and directed or asked that clothes be taken off. And he had both 

### victims perform the same sex act.50 Although the previous conduct occurred 15 years before the charged acts, the trial court found these similarities showed a scheme that allowed DeVincentis to pursue his compulsion for sexual contact 

### withprepubescentorpubescentgirls.51 In State v. Sexsmith,52 Division Three of this court found the following similarities sufficient to show a common scheme or plan. The defendant occupied a position ofauthority over both victims, who were aboutthe same age when the abuse started. The defendant isolated each victim when he abused her. The defendant forced each victim to take nude photographs, watch 

### pornography, and fondle him.53 Here, the trial court found a number of similarities between the charged crimes and the earlier abuse ofA.S.: 48DeVincentis. 150Wn.2d at 22. 49DeVincentis. 150Wn.2d at 22. 50DeVincentis. 150Wn.2d at 22. 51 DeVincentis. 150Wn.2d at 22. 

### 52 138 Wn. App. 497, 157 P.3d 901 (2007). 53 Sexsmith. 138Wn. App. at505. -19-No. 71822-3-1/20

Both victims were prepubescent. Schneiderhad access to each victimthrough his significantother. Schneiderasked eachto wearhigh heels and lingerie. Schneiderreassured each about no risk ofpregnancy. Schneider threatened each. Each victim's pain excited Schneider. The sex acts were consistent. Schneidervideotaped his sexual assaults with each victim. 

### These similarities parallel those found sufficient to show a common scheme or plan inDeVincentis and Sexsmith. 

### Schneider points to dissimilarities between the abuse of A.S. and J.S. to dispute that the similarities found by the trial court show a common scheme or 

### plan. He contrasts howthe abuse started foreach. For A.S., Schneider started with "three or four individual brutal forcible rapes." For J.S., "Schneider began 

### with her in a car, expressing loving reason for having intercourse with her." The locations of the abuse differed for the two victims. The abuse ofJ.S. occurred 

### frequently over a number of years, while the abuse of A.S. only occurred 

### sporadically. But, as our Supreme Court concludedin State v. Gresham.54these differences "are not so great as to dissuade a reasonable mind from finding that
54 173 Wn.2d 405, 423, 269 P.3d 207 (2012). -20-No. 71822-3-1/21

the instances are naturally to be explained as 'individual manifestations' of the
same plan." Though Schneider identifies some differences in the abuse of A.S. and J.S., he fails to show that the trial court abused its discretion in deciding that the abuse ofeach showed a common plan. Balancing Risk ofUnfairPrejudice againstProbative Value Schneider argues the trial court erred in concluding the risk of unfair prejudice from the prior acts evidence did not substantially outweigh that 

### evidence's probativevalue.55 The danger of unfair prejudice from prior bad acts is "at its highest" in 

### sexual assault cases.56 ButWashington courts also "give special consideration to the probative value of such evidence . . . , especially when corroborating 

### evidence is not available."57 Evidence of similar prioracts is "strongly probative" in child sex abuse cases because of



### 55 Conclusion 4 states in part, "The probative value ofthe evidence of the defendant's rapes of [A.S.] is exceptionally strong because of all the commonalities between the events." 

### 56 State v. Saltarelli. 98 Wn.2d 358, 363, 655 P.2d 697 (1982) ("'Once the accused has been characterized as a person of abnormal bent, driven by biological inclination, it seems relatively easy to arrive at the conclusion that he must be guilty, he could not help but be otherwise.'" (quoting M.C. Slough and J. William Knightly, Other Vices. Other Crimes. 41 Iowa L. Rev. 325, 333-34 (1956))); DeVincentis. 150Wn.2d at 24. 57 DeVincentis, 150Wn.2d at 25. -21-No. 71822-3-1/22 

### the secrecy surrounding child sex abuse, victim vulnerability, the 

### frequent absence of physical evidence ofsexual abuse, the public opprobrium connected to such an accusation, a victim's unwillingness to testify, and a lack ofconfidence in a jury's ability to determine a childwitness's credibility.1581 The trial courtdid not abuse its discretion by finding thatthe risk of unfair 

### prejudice does not substantially outweigh the probative value of the evidence of A.S.'s assault. As in DeVincentis. little corroborative evidence was available to 

### prove Schneider raped J.S.59 Thus, if the evidence ofA.S.'s assaults showed a
common scheme or plan, then it had high probative value. Although the 

### evidence had a high risk of unfair prejudice, that risk did not "substantially outweigh" the evidence's probative value. Completeness ofthe Record Schneider also claims that the state ofthe record before this court denied 

### him his constitutional rights to appeal and to due process. Since the trial court 

### looked at only documentary, audio, and visual records to make its ER 404(b) ruling, Schneideris entitled to have this courtreview the same record de novo to decide ifthe record supports thetrial court's findings. 

### A defendant is constitutionally entitled to a record of sufficient 

### completenesstopermiteffectiveappellatereviewof thedefendant'sclaims.60 "In most cases, a reconstructed record will provide the defendant a record of 58 State v. Kennealv. 151 Wn. App. 861, 890, 214 P.3d 200 (2009). 59See DeVincentis. 150 Wn.2d at 23. 60 State v. Tilton. 149Wn.2d 775, 781, 72 P.3d 735 (2003). -22-No. 71822-3-1/23


### sufficientcompletenessforeffectiveappellatereview."61 A record issufficientifit allows counsel to determine what issues to raise and "'place[s] before the 

### appellate court an equivalent report of the events at trial from which the appellant's contentions arise.'"62 The absence of aportion of the recorddoes not 

### require reversal unless thedefendantcandemonstrateprejudice.63 The trial court did not admit as evidence or have filed all the material it 

### reviewed inconnectionwith its ER 404(b) decision. Schneiderasserts he tried to recreate the record but was unable to produce a sufficient record. He identifies 

### as missing a video recording of the 2003 policeinterviewwith A.S. and an audio 

### recording of defense counsel's interview with J.S. Under Schneider's interpretation, "sufficientcompleteness" would mean absolute completeness. He asserts thatthis court needs not only a transcript ofthe defense's interview with 

### J.S., but the audio recording as well, and not only a transcript and audio 

### recording of the 2003 A.S. interview, but also the video recording. Schneider asserts that without the missing video and audio recordings, he cannot review the record to determine what issues and arguments it might support and this courtcannotproperlyevaluateA.S.'s credibility.

61 Tilton. 149 Wn.2d at 785. 

### 62 Tilton. 149 Wn.2d at 781 (internal quotation marks omitted) (quoting Statev. Jackson. 87Wn.2d 562, 565, 554 P.2d 1347 (1976)). 

### 63 Statev. Miller. 40Wn. App. 483, 488, 698 P.2d 1123 (1985). -23-No. 71822-3-1/24 

### Weighing credibility is not the function of an appellate court.64 And the content of both the recordings Schneider identifies as missing have been 

### adequately preserved: the record contains both an audio recording and a 

### transcript of the 2003 interview and transcripts of the defense interviewswith J.S. Schneider points out that the transcript of the 2003 police interview with A.S. contains numerous notations of "unintelligible" or "no response heard." But this court also has the audio recording ofthat interview. The reconstructed record 

### here is adequate for this court and Schneider to make an effective review. Schneider has shown no prejudice, and this is not one ofthe rare cases where 

### an incomplete record warrants a newtrial.65 Rights To Present a Defense and ConfrontWitnesses Schneider next asserts that the trial court violated his Sixth Amendment 

### rights to confront witnesses and present a defense by excluding evidence that J.S. reported that Elizabeth's ex-partner, John, abused her.

64 State v. Bartolome, 139 Wn. App. 518, 521, 161 P.3d 471 (2007) 

### ("[A]ppellate courts defer to trial courts, even when they rule on stipulated records in cases that turn on credibility and 'where competing documentary 

### evidence ha[s] to be weighed and conflicts resolved.'" (second alteration in original) (quoting In re Marriage ofRedout. 150 Wn.2d 337, 351, 77 P.3d 1174 (2003)))). 65See Tilton. 149 Wn.2d at 785.-24-No. 71822-3-1/25

The Sixth Amendment entitles defendants to "'a meaningful opportunity to 

### present a complete defense.'"66 But this does not give defendants a right to presentirrelevantevidence.67 Trialjudges may exclude evidencethey determine 

### is irrelevantso longasthey do notabusetheirdiscretion.68 The trial court did not abuse its discretion in excluding the evidence of J.S.'s past reports of sexual abuse. And Schneider cannot circumvent proper 

### evidentiary rulings by arguing they violate his right to presenta complete defense and right ofconfrontation. Schneideradvanced several theories ofrelevance for this evidence, all going to J.S.'s credibility, the keyfactor inthis case: 1. The evidence showed J.S. had reported the same type of abuse in the past and that it had caused her mother to get rid of her lover, John, that time. Schneider argued J.S. was accusing him for the
same purpose because hewas aboutto getcustody ofher. 2. It showed J.S. had a basis for knowledge about sexual conduct apartfrom Schneiderraping her. 3. Itwould impeach J.S.'s credibility by showing a tendency to change herstory based on hermother's influence, not heractual memory. 66 Holmes v. South Carolina. 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (internal quotation marks omitted) (quoting Crane v. Kentucky. 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986)); State v. Lynch. 178 Wn.2d 487, 491, 309 P.3d 482 (2013). 67Jones. 168Wn.2d at 720. 

### 68 State v. Perez-Valdez. 172Wn.2d 808, 814, 265 P.3d 853 (2011). -25-No. 71822-3-1/26



### 4. Since the State made J.S.'s credibility central in arguing for the 

### 404(b) evidence to come in, Schneider should have a chance to combatthat argument. 

### 5. Evidence ofJ.S.'s report about John provided "crucial context" for 

### part of Torr Lindberg'stestimony.69 We reject Schneider's arguments. The trial court carefully considered whether to admit the evidence. Itconsidered allowing the evidence while giving 

### the jury a limiting instruction.70 It determined, however, that admitting the evidence would require a minitrialto determine whetherthe abuse occurred and how itwas discovered. Itfound thatthe risk of unfair prejudice, confusion ofthe 

### issues, and misleading thejurysubstantially outweighed the evidence's probative value. The trial court thus reached the reasonable conclusion that admitting 

### J.S.'s reports of abuse would result in a high risk of unfair prejudice and confusing thejury, and itreasonablyexcluded theevidence underER 403. Inaddition, the evidence had only marginal probative value. As the State 

### points out, J.S. would almost certainly have known that reporting Schneider raped herwould prevent him from getting custody of her, whetheror not she had donethe same withJohn inthe past. The record contains no indication thatJ.S., at 16, would not have a basis for sexual knowledge apart from Schneider 

### 69 Thattestimonywas a note, "Noabuse reported afterthattime." 70See Perez-Valdez. 172 Wn.2d at 815. -26-No. 71822-3-1/27 

### assaulting her. Showing J.S. gained that knowledgefrom John's abuse would have no probative value either. Schneider's theory that J.S.'s report ofJohn's abuse showed an "ability" tochange herstories based on hermother's influence, 

### thus affecting her credibility, appears to be sheerconjecture. And neither party introduced the note in TorrLindberg's report thatSchneiderassertsthis evidence would provide "crucial context" for. Because the trial court did not abuse its discretion in finding the evidence


### was irrelevant, it did not deprive Schneider of a "meaningful opportunity to 

### present acompletedefense" or hisabilitytoconfrontwitnesses.71 Exclusion ofEvidence ThatJ.S. Knew ofA.S.'s Accusations 

### Annetta Spicer testified that when she asked J.S. in a 2010 interview if Schneider abused her, J.S. said "nothing had ever happened" and "she had no 

### issues with [Schneider]."72 Schneider's counsel then asked if J.S. was "made
aware ... ofthe allegation of[A.S.]." Thetrial courtexcluded Spicer's response. Schneider argues that the trial court abused its discretion in doing so. 

### Although Spicer told J.S. about A.S.'s allegations in 2010, the State repeatedly 

### pointed out that J.S. and A.S. did not know each other and argued that similarities between their accounts bolstered J.S.'s credibility. Schneider 

### 71 Holmes, 547 U.S. at 324 (internal quotation marks omitted) (quoting Crane. 476 U.S. at690); seeJones. 168Wn.2d at 720. 

### 72 Spicer had no notes of the interview, which occurred fouryears before trial. -27-No. 71822-3-1/28


### contends thatevidencethatSpicertoldJ.S. aboutA.S.'s allegations was relevant 

### to J.S.'s basis ofknowledge and, thus, her credibility. He further contends this
was knowinguse offalse evidence orimpropermanipulation of material evidence in violation ofthe Fourteenth Amendment. 

### This challenge lacks merit. Schneiderdoes not contend that Spicerknew 

### any details ofA.S.'s allegations against Schneider. Without that knowledge, the evidence is not relevant: J.S. knowing the bare fact that another woman had accused Schneider could not diminish her credibility in detailing the abuse she 

### suffered or the probativeness of the similarities between the girls' accounts. Those similarities are what the State relied on in its closing arguments. The trial court did not abuse its discretion or violate Schneider's constitutional rights in excluding thatevidence. Schneider's claim that the State committed prosecutorial misconduct by 

### arguing contrary to facts it knew also lacks merit. Schneider does not contend 

### Spicer knew the details of A.S.'s allegations.73 The record supports the State's argument that J.S. did not know the details of A.S.'s reported rapes. And Schneider cites no authority indicating a closing argument can be "false evidence." This courtwill not reverse for trial irregularities unless the misconduct


### 73 Spicer's knowledge ofA.S.'s allegations appears to have come from trial exhibit45, a petition for custody and parenting time. That exhibit is not part ofthe appellate record. -28-No. 71822-3-1/29 

### prejudiced the jury, denying the defendant a fair trial.74 No such misconduct occurred here. Trial Court's Imposition ofCosts on Schneider The trial court assessed Schneider $887 in court costs and $600 in 

### mandatory fines. The trial court imposed these costs under RCW 10.01.160, which provides thatthe "court shall not ordera defendantto pay costs unless the 

### defendant is or will be able to pay them."75 Schneider suffered a major head injury while the case was pending. The court sentenced Schneider to 280 months to life inprison. The court laterfound Schneiderindigent, authorizing the preparation of trial transcripts atpublic expensefor his appeal. When a trial court imposes costs under RCW 10.01.160, "[t]he record must reflectthatthe trial courtmade an individualized inquiry into the defendant's 

### currentand future ability to pay."76 The State makes three arguments in support of the trial court's finding. 

### We reject each. First, the State contends that Schneider invited any error. The "invited error" the State points to is Schneider's claim at sentencing that Schneider was "a productive member of the community" and presentation of evidence at a bail hearing that Schneider worked throughout his adult life.
74 State v. Davenport. 100Wn.2d 757, 762, 675 P.2d 1213 (1984). 

### 75 RCW 10.01.160(3). 76 State v. Blazina. 182Wn.2d 827, 838, 344 P.3d 680 (2015). -29-No. 71822-3-1/30


### Defense counsel's general comments about Schneider's work history cannot reasonably be construed to "invite" a finding that Schneider had the present or future abilityto pay. 

### Second, the State points out that Schneider did not object to the court's imposition offees at the sentencing hearing. Division Two held this to bar such


### an argument on appeal in State v. Blazina.77 But that court held the defendant could not challenge for the first time on appeal a trial court's legal financial 

### obligations (LFOs) order that was allegedly based on unsupported findings.78 Here, the trial court made no findings. Third, the State contends that the record supports the trial court's finding 

### that Schneiderwould be able to pay $887. Itpoints again to defense counsel's 

### representation that Schneider was steadily employed, along with the fact Schneider had retained counsel for an appeal, in arguing that the trial court 

### properly concluded that Schneider had the present or future ability to pay. The record does not show that the court considered Schneider's ability to pay, as 

### RCW 10.01.160(3) requires. We conclude that the trial court exceeded its 

### statutory authority by imposing LFOs without "tak[ing] account of [Schneider's] financial resources . . . and the nature of the burden that payment of costs will


### 77 174 Wn. App. 906, 911, 301 P.3d 492 (2013), remanded. 182 Wn.2d 827, 344 P.3d 680 (2015). 78 Blazina. 174Wn. App. at 911.-30-No. 71822-3-1/31 

### impose."79 Becausethe trial court did not make the individualized findings RCW 10.01.160(3) requires and because the basis for its determination does not 

### otherwise appear in the record, we remand for a resentencing hearing on this
issue. CONCLUSION 

### The record sufficiently supports each conviction and each challenged evidence decision. Schneider's other arguments lack merit. But because the trial court did not make an individualized inquiry into Schneider's ability to pay 

### costs, we reversethatpartof his sentence imposing costs and remand for further proceedings consistentwiththis opinion.

WE CONCUR: 

## /jZA^K / 

# CtyiJ.

79RCW 10.01.160(3). ^ cZo^ y,'y -31- \ -ti\