IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. TIMOTHY ALLEN LUDWIG, Appellant. NO. 70768-0-1 DIVISION ONE

UNPUBLISHED OPINION ^ FILED: September 22, 2014


### Lau,J. — Timothy Ludwig appeals his conviction for one count of firstdegree incest and three counts ofsecond degree incest involving SL. He argues thatthe trial 

### court's limiting instruction failed to adequately limitthejury's consideration of prior misconduct evidence. He further contends that defense counsel was ineffective for 

### failing to object. Because Ludwig failed to demonstrate a manifest constitutional error that can be raised for the first time on appeal or that defense counsel's failure to object 

### caused prejudice, we affirm the convictions. And because the parties agree that the 

### standard range term ofconfinement combined with the term of community custody exceeds the standard range, we remand to the sentencing court to correctthe judgment and sentence consistentwith this opinion.70768-0-1/2

FACTS Timothy Ludwig is SL's biological father. When SL was 13 years old, the family lived inVancouver, Washington. One night when SL was inthe shower, Ludwig walked inthe bathroom, opened the shower curtain, and began washing SL. When SL protested, Ludwig told herthis activity was normal because SL was his daughter. After that, Ludwig regularly got inthe showerwith SL. Ludwig had SL wash his penis and testicles. Ludwig got an erection and ejaculated when SL did this. When she was done, Ludwig washed SL, including her genitalia. Ludwig never showered with SL unless he was alone in the house with her. The family moved to the city ofSnohomish when SL was 16. About six months afterthe move, Ludwig resumed his practice of having SL wash his penis and masturbate him inthe shower. When SL protested, Ludwig again told herthere was nothing to be ashamed ofbecause he was her father. This occurred about once a week. On one occasion, Ludwigreached down and rubbed his finger between SL's 

### vaginal lips. SL moved away quicklybefore Ludwig penetrated her vagina. 

### Occasionally Ludwig asked SL to put her mouth on his penis, but she always refused. Sometimes he would plead with her and othertimes he would get angry and slap her. 

### Ludwig also had sexual contactwith SL in the living room and in his bedroom. Ludwig sometimes had SL masturbate himwith a pink rubber device he kept on a nightstand beside his bed. 

### Ludwig subjected SL and her siblings to physical discipline. On one occasion 

### when they were living in Alaska, Ludwig punished the children by having them strip naked and eat dinner inthe living room while Ludwig watched. -2-70768-0-1/3
The lasttime Ludwig had sexual contact with SL was in May 2012. SL became
so anxious that she experienced stomach pains. One of SL's friends encouraged herto report the sexual abuse. She walked with SL to the school counselor's office. Atthe office, SL reported the abuse to a school counselor and a police officer. Police obtained
a search warrantfor Ludwig's home. There they found the pink rubber device in Ludwig's bedroom, as SL had described it. Testing revealed evidence of both Ludwig and SL's DNA on the device, as well as a small amount of DNA from a third unknown person. Ludwig admitted to police that he used the device but denied any sexual contact with SL. Ludwig told police SL had no reason to touch the device but stated that she frequently came into the bedroom where itwas kept. Ludwig's stepdaughter LTtestified that Ludwig sexually abused herwhen she


### was between the ages of 11 and 13. LTwas 23 years old at the time of trial. LT said that when the family lived inTexas, Ludwig asked her to bathe himbecause he had a broken hand. She said that Ludwig's genitals were covered with a washcloth, but the incident made herfeel uncomfortable. The family later moved to Alaska. LT's mother 

### worked nights, and Ludwig had LT sleep with him in his bed almost every night. LT said Ludwig would touch her breasts and vagina over her clothing. Once or twice a week, 

### Ludwig watched LTwhen she showered. When LT objected, Ludwig said that he had a right to do that because he was her father. On one occasion during a driving trip, because LT lost a game they were playing in the car, Ludwig stopped the car, directed LT behind a tree, and put his penis in her mouth while he masturbated. LT also recalled the incident in which Ludwig punished the children by forcing them to eat dinner naked.70768-0-1/4 Ludwig was charged in a third amended information with one count of first degree incest and three counts ofsecond degree incestfor acts committed against SL between June 2009 and May 3, 2012. Thejury convicted Ludwig as charged. The trial court sentenced him to concurrent standard range terms of incarceration, plus three years' community custody on each count. Ludwig appeals.
ANALYSIS Limiting Instruction Pretrial, the trial court granted the State's ER 404(b) motion to allow Ludwig's 

### former stepdaughter LT to testify about how Ludwigsexually abused herduring her 

### early teens. The court admitted LT'stestimony to show Ludwig's "design to commit sexual assault as well as a pattern ofgrooming children for abuse." Br. ofAppellant at 3. The court also allowed SL to testify about uncharged "incidents ofsexual 

### touching" to show Ludwig's lustful disposition toward SL and to establish res gestae evidence—conduct close in time to the charged crimes. 

### Ludwig first argues that the trial court's limiting instruction failed to limitthe jury's consideration of priormisconduct evidence to its properpurposes. ER 404(b) governs 

### the admissibility ofprior misconduct evidence for purposes other than proofof general character. The rule provides a nonexhaustive list ofpurposes for which misconduct evidence is admissible. ER 404(b) provides: 

### Evidence ofothercrimes, wrongs, or acts is not admissible to prove the 

### characterof a person in order to show action inconformitytherewith. It may, however, be admissible forotherpurposes, such as proof of motive, opportunity, 

### intent, preparation, plan, knowledge, identity, orabsence of mistake or accident.
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When evidence of prior misconduct is admitted under ER 404(b), courts may give a limiting instruction to ensure that thejury does not considerthe evidence for an invalid purpose ifrequested by a party. "Anadequate ER 404(b) limitinginstruction must, at a minimum, inform thejury ofthe purpose for which the evidence is admitted and thatthe evidence may not be used for the purpose ofconcluding thatthe defendant has a 

### particular character and has acted in conformity withthat character." State v. Gresham. 173 Wn.2d 405, 423-24, 269 P.3d 207 (2012). 

### The State proposed, and the court gave, the following limiting instruction for evidence ofother sexual misconduct: In a criminal case in which the defendant is accused ofincest, evidence ofthe defendant's commission ofanother offense or offenses of sexual misconduct are 

### admissible and may be considered for its bearing on any mannerto which it is relevant. However, evidence of a prioroffense or offences on its own is not 

### sufficient to prove the defendant guilty of any crime charged in an Amended Information. Bear in mindas you considerthis evidence that at all times the State has the burden of proving that the defendant committed each of the elements of the offenses charged in the Amended Information. Iremind you that the defendant is not on trial for any act, conduct, or offense not charged in the Amended Information. 

### Ludwig did not object to this limiting instruction below. "The appellate court may refuse to review any claim of errorwhich was not raised in the trial court." RAP 2.5(a). State v. Fitzgerald, 39 Wn.App. 652, 662, 694 P.2d 1117 (1985) (Because defendant 

### failed to objectto the court'soral limiting instruction, hemay not raiseitforthefirsttime on appeal.). An exception to this generalrule existsfor a "manifesterroraffecting a 

### constitutional right." RAP 2.5(a)(3). "To meetRAP 2.5(a) and raise an errorforthefirst time on appeal, an appellantmust demonstrate(1) the error ismanifest and(2) the error 

### is truly ofconstitutional dimension." Statev. O'Hara, 167Wn.2d 91, 98, 217 P.3d 756
-5-70768-0-1/6 (2009). In otherwords, the appellant must "identify a constitutional error and show how the alleged error actually affected the [appellant's rights attrial." State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). "Instructional errors do not automatically constitute manifest constitutional error." State v. Guzman Nunez, 160 Wn. App. 150, 163, 248P.3d 103(2011). Here, the limiting instruction claim does not involve a manifest constitutional
error. Our Supreme Court has noted several instructional errors that implicate a constitutional interest, including instructions that direct a verdict, shiftthe burden of 

### proof to the defendant, fail to define the "beyond a reasonable doubt" standard, fail to 

### require a unanimous verdict, and omit an element of the crime charged. See O'Hara, 167 Wn.2d at 100-01. These errors "affect a defendant's constitutional rights by 

### violating an explicit constitutional provision or denying the defendant a fair trial through
a complete verdict." O'Hara, 167 Wn.2d at 103. The alleged error in this case does not implicate these serious constitutional concerns. Moreover, absent a request, a trial court is not required to give a limiting 

### instruction for ER 404(b) evidence. Russell, 171 Wn.2d at 123. In this case, we decline 

### to conclude that the alleged imperfectlimiting instruction implicates a constitutional right when a limiting instruction is not mandatory as a matter of law unless requested. Therefore, ifa trial court may omit the instruction altogetherwithoutimplicating constitutional interests, then the trial court here committed no constitutional error by providing the instruction at issue. 

### In any event, any nonconstitutional error was harmless. The alleged error is harmless "'unless within reasonable probabilities had the error notoccurred the -6-70768-0-1/7

outcome ofthe trial would have been materially affected.'" Gresham, 173 Wn.2d at 425 (internal quotation marks omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)). Because ofthe instruction given at trial, the way the prosecutor used the evidence admitted under ER 404(b), and the strength ofthe evidence, the allegedly
erroneous limiting instruction was harmless. First, ER 404(b) prohibits only one improper purpose for which evidence of prior misconduct may not be used—to demonstrate the defendant's character and prove that he acted in conformity with that character. Gresham. 173 Wn.2d at421. While the instruction given to thejury did not specify the properpurposes for which thejury could considerthe evidence, it did ensure they would not considerthe evidence for an 

### improper purpose. The instruction explicitly stated that any evidence of a prioroffense "on its own is not sufficientto prove the defendant guilty ofthe crimes charged." Therefore, the instruction properly informed thejury not to considerthe evidence to determine whetherthe defendant was guilty simply because he acted "in conformity" with prior behavior. Second, the record shows that the prosecutor never urged thejury to use the 

### evidence of priormisconductfor an improper purpose. At closing, the prosecutor argued to the jury to use the evidence for a properpurpose: 

### You heard [L] say she had been groomed in the same wayyears before [S]. And the instruction with respectto Ido not wantyou to considerthat, because that 

### happened with [L] doesn't mean he's guilty, what itmeans is it shows that the defendant in his conductwith [L] had a design. He had a design to molest and 

### sexually assault [S]. And the similarities that you heard in the testimony, the showering, the being made to watch the defendant masturbate, those are similar 

### things years apart that corroborate what that womantold you on the witness stand.70768-0-1/8
Verbatim Report of Proceedings (June 12, 2013) at 293. Here, the prosecutor emphasized to thejury the permissible purposes for which they may considerevidence of prior misconduct. Third, Ludwig does not challenge the admissibility ofthe uncharged evidence 

### involving LT and SL. Even ifthe court had given the WPIC 5.30 instruction,1 the outcome ofthe trial within reasonable probabilities would have been the same in light of the ample evidence of guilt at trial, summarized above. The error, if any, was harmless. Ineffective Assistance of Counsel Ludwigargues that defense counsel was ineffective for failing to objectto the 

### limiting instruction. "To prevail on a claim of ineffective assistance ofcounsel, counsel's representation must have been deficient, and the deficient representation must have 

### prejudiced the defendant." State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

### "Toestablish ineffective representation, the defendant must showthat counsel's 

### performance fell below an objective standard ofreasonableness." State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). "[Sjcrutiny ofcounsel's performance is highly 

### deferential and courts will indulge in a strong presumption ofreasonableness." State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). "To establish prejudice, a defendant must show that but forcounsel's performance, the resultwould have been
1 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 

### 5.30, at 180 (3d ed. 2008) (WPIC) states: "Certainevidence has been admitted in this case for only a limited purpose. This [evidence consists of and] may be 

### considered by youonly for the purpose of
. You may not consider itfor 

### any other purpose. Any discussion ofthe evidenceduring yourdeliberations must be consistent with this limitation." -8-70768-0-1/9
different." McNeal, 145 Wn.2d at 362. Failure to establish either prong ofthe test is fatal to an ineffective assistance ofcounsel claim. Strickland, 466 U.S. at 700. 

### Ludwig argues that defense counsel's failure to objectto the instruction, which
was based on a statute that was found unconstitutional over a year before trial, failed to 

### limit the evidence to its properpurpose and was clearly deficient. Ludwig further argues 

### he suffered prejudice because the trial court would have given a properlimiting instruction ifhis attorney had objected. He contends it is reasonably likely the jury would have reached a different result absentthe improper instruction. 

### Even ifwe assume, without deciding, that defense counsel's failure to objectto 

### the limiting instructionconstitutes deficient performance, Ludwig establishes no 

### prejudice. Ludwig must show that, but for counsel's failure to object to the instruction, the outcome ofthe trial would have been different. 

### First, even ifcounsel objected, Ludwig makes no showing that the trial court would have sustained the objection. See State v. MacFarland, 127 Wn.2d 322, 337 

### n.4, 899 P.2d 1251 (1995) ("Absent an affirmative showing that the motion probably 

### would have been granted, there is noshowing of actualprejudice."). Second, evenif the trial court had sustained defense counsel's objection and given a WPIC 5.30 

### instruction, thejurywould havereturned the same verdictgiven theample evidence of 

### guilt, summarized above. Ludwig fails toshowthat defensecounsel's alleged deficient performance resulted inprejudice. Community Custody 

### Ludwig argues that thetrial courterredin imposing combined terms of incarceration andcommunity custody that exceeded the statutory maximum for each -9-70768-0-1/10
count. "A trial court may only impose a sentence which is authorized by statute." State
v. Barnett, 139 Wn.2d 462, 464, 987 P.2d 626 (1999). Here, Ludwig was sentenced to 90 months' incarceration on the first degree incest count and 60 months' incarceration
on the second degree incest counts. In addition, Ludwig was sentenced to 36 months' community custody on each count. Thus, Ludwig was sentenced to a total of 126 months on the first degree incest count, a class B felony with a 120-month statutory maximum, and a total of 96 months on the second degree incest counts, class C felonies with a 60-month statutory maximum. RCW 9A.20.021(b), (c); RCW 9A.64.020(1)(b), (2)(b). The State concedes thatthe sentence erroneously exceeded the statutory maximum for the crimes. We acceptthe State's concession. The proper remedy is to remand to the trial court to specify a combined term ofcommunity custody and incarceration that does not exceed the statutory maximum. State v. Land, 172Wn. App. 593, 603, 295 P.3d 782 (2013); RCW 9.94A.701(9) ("The term ofcommunity custody specified by this section shall be reduced by the court whenever an offender's standard range term ofconfinement incombination withthe term ofcommunity custody exceeds the statutory maximum forthe crime as provided in RCW 9A.20.021.'") (quoting RCW 9.94A.701(9)). CONCLUSION 

### Ludwig failed to establish that the alleged instructional error is a manifest constitutional errorthat may be reviewed for the first time on appeal. Nor has he shown 

### prejudice resulting fromdefense counsel's alleged deficient performance. We therefore

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affirm Ludwig's conviction but remand to the sentencing courtto correctthejudgment and sentence in accordance with this opinion.

WE CONCUR: 

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