IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

JOSE ISMAEL MALDONADO,

Appellant.

DIVISION ONE

No. 70820-1-1

UNPUBLISHED OPINION

FILED: July 20, 2015

Dwyer, J. —Jose Maldonado appeals from the judgment entered on a

jury's verdict finding him guilty of child molestation in the first degree. Maldonado

contends both that the trial court erred by admitting evidence of priorsex

offenses pursuant to ER 404(b) and that the State presented insufficient

evidence that he touched the victim for the purposes of sexual gratification. In a

statement of additional groundsfor review, Maldonado claims that he received

ineffective assistance of counsel. Finding no error, we affirm.

I

In December 2010, Maldonado lived in a one-bedroom apartment in

Seattle with his wife, Maria Gomez, and their five-year-old daughter, G.M.

During herwinter vacation from school, G.M. went to stay with her older sisters,

19-year-old Isabel and 24-year-old B.V., at B.V.'s home in Aberdeen. At one

point during the visit, G.M. told B.V. that she did not want to go back home
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"because her dad was hurting her." The following morning, while B.V. was giving

G.M. a bath, B.V. noticed a bruise on G.M.'s upper thigh. B.V. finished bathing

G.M. and told Isabel to ask G.M. about the bruise while B.V. took a shower.

G.M. told Isabel that Maldonado had grabbed her thigh and squeezed "really

hard." Isabel asked if Maldonado touched G.M. anywhere else and G.M. said

yes and patted her vaginal area. Isabel asked if Maldonado touched G.M. over

or under her underwear. G.M. said "under" and demonstrated by pulling her

underwear forward and placing her hand underneath. G.M. told Isabel the abuse

took place while she and Maldonado watched television in bed and that she told

Maldonado to stop but "he would just ignore her and act like she didn't say

anything." When B.V. returned, G.M. told B.V. that Maldonado "would warm up

his hands and put them underneath her pants and her underwear and push

down." G.M. told B.V. that the abuse happened when she and Maldonado were

watching television togetherwhile Gomez was at work.

B.V. reported G.M.'s disclosures to police. As part of the investigation,

child interview specialist Carolyn Webster interviewed G.M. G.M. told Webster

that Maldonado "put his finger in my colita." G.M. demonstrated, through the use

of a drawing as well as on her own body, that "colita" meant her vaginal area.1

Consistent with her earlier disclosures, G.M. stated that the abuse occurred

when she and Maldonado were watching television while Gomez was at work,

1ASpanish interpreter testified that "colita" is a term commonly used in Mexico which

can mean "the bottom ofa child, but itcould be the front partor the backlike the buttocks or the

vagina."
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and that Maldonado touched her underneath her underwear. G.M. told Webster

that Maldonado did not talk to her or answer her when she talked to him, but

merely continued to watch television. G.M. stated that it hurt because he "just

squished it" and that afterwards Maldonado went tothe bathroom and washed

his hands.

The State charged Maldonado by amended information with two counts of

child molestation in the first degree. Maldonado's first trial ended in a mistrial

after the jury could not reach a unanimous verdict. For reasons that are unclear

from the record, it appears that the State proceeded at retrial on one count of

child molestation in the first degree - domestic violence.

Prior to the retrial, the State moved to introduce evidence ofprior sexual

misconduct by Maldonado against B.V. B.V. is Gomez's daughter from a prior

relationship. B.V. was two or three years old when Gomez and Maldonado

began their relationship. In approximately 1992 or 1993, when B.V. was six or

seven, Maldonado and Gomez were living in Forks. Gomez discovered blood in

B.V.'s underwear and B.V. disclosed that Maldonado was sexually abusing her.

B.V. stated that Maldonado would come into her bedroom early in the morning,

while Gomez was making his lunch for work, and "he would come in and remove

my pants and underwear, whatever Iwas wearing, and he'd grab his hand up to

his lips and tell me to be quiet." B.V. stated that Maldonado "would put his hands

on top of my vagina and would rub, and then Iwould be really wet and it would

hurt and Ifelt pressure." Gomez confronted Maldonado, who denied the

allegations. Gomez allowed Maldonado to remain in the home because

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Maldonado threatened to take Isabel away from her and have her deported to

Mexico.

In 1994, the family moved to Aberdeen. For the first year, the family lived

in an apartment where B.V. had her own bedroom with a doorthat locked.

Maldonado did not abuse B.V. in that apartment. The family subsequently

moved to another apartment where B.V.'s bedroom door did not have a lock.

During the year the family lived in that apartment, Maldonado entered B.V.'s

bedroom approximately three orfour times a week late at night orin the early

morning. On these occasions Maldonado would put his hand inside B.V.'s

underwear and rub her vaginal area. Maldonado did not say anything other than

telling B.V. to be quiet. Because Gomez was afraid that Maldonado was

continuing to abuse B.V., she attempted to monitor his whereabouts by placing a

small trash can behind B.V.'s bedroom door orsprinkling talcum powder around

B.V.'s bed. When Gomez went into B.V.'s bedroom in the morning she

frequently discovered that the trash can had been knocked over or there were

footprints in the powder the size of"a big foot."

In 2006, B.V. reported the abuse that occurred in Forks to police. At the

time B.V. did not remember the abuse that occurred in Aberdeen. Maldonado

admitted during a subsequent Child Protective Services (CPS) investigation that

he had touched B.V. in a sexual manner on one occasion while the family lived in

Forks.

The State argued thatthe evidence ofthe prior abuse ofB.V. was

admissible for purposes of demonstrating motive, intent, a common scheme or

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plan and absence of mistake oraccident. The trial court ruled that evidence of

Maldonado abusing B.V. while the family lived in Forks was admissible on all of

these grounds.

Ido find by a preponderance ofthe evidence thatmolestation did

occur of[B.V.] in Forks and that the probative value ofthis

testimony outweighs its prejudicial effect. Certainly there is

prejudicial effect, but Ithink there's very substantial probative value

here, particularly for showing thatthis was in fact done for purposes

ofsexual gratification, also for showing that it wasn'tdone in some

sort ofaccidental way orthat[G.M.] misunderstood what was going

on.

And also Ithink that we've clearly got a common scheme or plan

here in terms of the manner of the touching, being done with a

hand, underthe underwear, at the - that in the child's bedroom

when the mother is either at work or making a meal, that it is done

when the children are about the same age, that it's true that [B.V.]

is not the biological daughter of Mr. Maldonado but wasin the

position of being a daughter atthe time that this occurred, just as

[G.M.] is, and Ithink that therefore it does meet the standards for

common scheme or plan as well. So I'll - Iwill admit that testimony

at trial.

The trial court initially ruled that the State had not proved Maldonado had abused

B.V. in Aberdeen by a preponderance of the evidence, finding it "inconsistent"

that B.V. did not remember theAberdeen abusewhen she reported the Forks

abuse in 2006. After further argument, the trial court reversed its ruling and

admitted the evidence.

Okay. Well, Iguess Iwill reconsider. Imean Ihave to admit that as

Ithink about it, you know, Ms. Maria Gomez's testimony does

support, to the extent that she can do so, corroborate elements of

what [B.V.] isremembering, and so if we're simply on a more

probable than not basis, which we're talking about preponderance

ofthe evidence, then Iguess on a more probable than not basis on

[B.V.'s] testimony, you know, Ifind that it did occur and then it

becomes relevant. So Ithink it is admissible.
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The trial court did not explicitly state for which purposes the Aberdeen evidence

was admissible. However, the trial court instructed the jury that "evidence of the

defendant's prior sexual contact with [B.V.] may be considered by you only for

the purposes of common scheme or plan, absence ofmistake or accident and as

evidence of sexual motivation as it relates to the current charge."

Maldonado testified at trial. He stated that he was using alcohol and drugs

in 1993 and that he frequently had blackouts where he did not remember

anything. He admitted totouching B.V.'s vaginal area on top of her clothes on

one occasion while B.V. was asleep. He also admitted that he was not

responsible for putting B.V. to bed or getting her dressed in the morning and had

no reason to ever go into B.V.'s bedroom. He denied he had ever touched G.M.

sexually but stated he may have massaged her legs with baby oil two or three

times at Maria's suggestion.

The jury convicted Maldonado of one count of child molestation in the first

degree - domestic violence. Maldonado appeals.

II

Maldonado argues that the trial court erred in admitting evidence,

pursuant to ER 404(b), that he sexually abused B.V. We review a trial court's

interpretation of an evidentiary rule de novo. State v. DeVincentis, 150 Wn.2d

11, 17, 74 P.3d 119 (2003). If the trial court has correctly interpreted the rule, we

review the decision to admit or exclude evidence for abuse of discretion.

DeVincentis, 150Wn.2d at 17. Atrial court abuses its discretion if its decision "is
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manifestly unreasonable or based upon untenable grounds or reasons." State v.

Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

Under ER 404(b), a court is prohibited from admitting "[ejvidence of other

crimes, wrongs, or acts ... to prove the character ofa person in orderto show

action in conformity therewith." Such evidence may, however, be admissible for

other purposes, such as demonstrating motive, intent, a common scheme or

plan, orlack of mistake or accident. ER 404(b); State v. Fisher, 165 Wn.2d 727,

744, 202 P.3d 937 (2009). This court has recognized that evidence ofprior bad

acts is especially probative in cases involving child sexual abuse because of "(1)

the secrecy in which the acts occur, (2) the vulnerability ofthe victims, (3) the

lack ofphysical proof ofthe crime, (4) the degree ofpublic opprobrium

associated with the accusation, (5) the unwillingness ofvictims to testify, and (6)

the jury's general inability to assessthe credibility of child witnesses." State v.

Baker. 89 Wn. App. 726, 736, 950 P.2d 486 (1997). Before admitting evidence

pursuant to ER 404(b), the trial court must "(1) find by a preponderance of the

evidence the misconduct actually occurred, (2) identify the purpose ofadmitting

the evidence, (3) determine the relevance of the evidence to prove an element of

the crime, and (4) weigh the probative value against the prejudicial effect of the

evidence." Fisher, 165 Wn.2d at 745.

Maldonado first argues that the State failed to prove by a preponderance

ofthe evidence that he sexually abused B.V. in Aberdeen.2 Wewill uphold a trial

2Although not entirely clear, it appears that Maldonado is challenging the sufficiency of

the evidence only asto the Aberdeen abuse. Maldonado did not designate the portion of the

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court'sfinding that prior misconduct occurred if substantial evidence in the record

supports the finding. State v. Benn. 120Wn.2d 631, 653, 845 P.2d 289 (1993).

Here, there was substantial evidence that Maldonado sexually abused B.V. in

Aberdeen. B.V. testified that Maldonado frequently came into her bedroom late at

night orin the early morning and rubbed her vaginal area under her clothes.

Maldonado conceded that he had no reason to be in B.V.'s bedroom. And

Gomez testified that she frequently found the trash can behind B.V.'s door

knocked over orlarge footprints in talcum powder around the bed. Although

Maldonado challenges B.V.'s credibility, we do not review a trial court's credibility

determinations. State v. Camarillo. 115Wn.2d 60, 71, 794 P.2d 850 (1990).

Maldonado further contends that the trial court erred in determining the

evidence of prior sexual abuse was relevant for an admissible purpose. But the

trial court properly admitted the evidence to demonstrate the existence of a

common scheme or plan. When "the issue is whether the crime occurred, the

existence of a design to fulfill sexual compulsions evidenced by a pattern of past

behavior is probative." DeVincentis, 150 Wn.2d at 17-18. Admission of evidence

for this purpose "requires substantial similarity between the prior bad acts and

the charged crime." DeVincentis, 150 Wn.2d at 21. However, there is no

requirement that the similarities "be atypical or unique to the way the crime is

usually committed." DeVincentis, 150Wn.2d at 13.

record wherein the State argued for admission of evidence of the Forks abuse, and in the portion

ofthe record available to this court, trial counsel conceded thatthe State had metits burden as to

the Forks abuse evidence.

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Contrary to Maldonado's assertion, there were marked similarities

between the prior offenses and the charged offense. Maldonado had a paternal

relationship with both girls: G.M. was Maldonado's daughter and B.V. was

Maldonado's step-daughter. Maldonado abused both girls in the home, while the

girls were in bed, either sleeping orwatching television. Maldonado began

abusing both girls at a similar age, when G.M. was five years old and when B.V.

wassix years old. Finally, Maldonado's behavior during the prior offenses was

substantially similar tothe charged offense. Without speaking, other than telling

B.V. to stay quiet, Maldonado placed his hand inside the girls' underwear and

rubbed their vaginal areas. These similarities were sufficient to support the trial

court's finding that the incidents demonstrated a common scheme or plan.3

In his reply brief, Maldonado argues for the first time that the trial court

erred in failing to consider and weigh the lapse in time between the prior offenses

and the charged offense in determining relevance. We will not address an issue

first raised in a reply brief. RAP 10.3(c); State v. Chen, 178 Wn.2d 350, 358 n.

11, 309 P.3d 410 (2013).

Ill

Maldonado next contends that his trial counsel provided ineffective

assistance by failing to request a limiting instruction regarding the ER 404(b)

evidence. This contention is unavailing. As we have already noted, the trial

3Becausewe hold that the trial court properly admitted evidence of Maldonado's prior

offenses under the common scheme or plan exception to ER 404(b), we need notaddress

Maldonado's claim that the trial court erred in admitting the evidence for other purposes.
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courtexpressly instructed the jury as to the permissible purposes for the ER

404(b) evidence, and the deputy prosecutor discussed this limiting instruction at

length in closing argument. Maldonado implicitly abandonsthis issue in his reply

brief and we do not consider it further.

IV

Maldonado next claims that insufficient evidence was adduced at trial to

support the jury's verdict because the State did not establish that hetouched

G.M. for the purpose of sexual gratification. We disagree.

Aclaim ofevidentiary insufficiency admits the truth ofthe State's evidence

and all reasonable inferences from that evidence. State v. Kintz, 169 Wn.2d 537,

551, 238 P.3d 470 (2010). We view all evidence in the light most favorable to the

State in order to determine whether "any rational trier offact could have found

the essential elements ofthe crime beyond a reasonable doubt." State v. Joy,

121 Wn.2d 333, 338, 851 P.2d 654 (1993).

Aperson is guilty of child molestation in the first degree when the person

has "sexual contactwith anotherwho is less than twelve years old and not

married to the perpetrator and the perpetrator is at least thirty-six months older

than the victim." RCW 9A.44.083(1). "Sexual contact" is "any touching ofthe

sexual orother intimate parts of a person done for the purpose of gratifying

sexual desire of either party ora third party." RCW 9A.44.010(2). "Sexual

gratification" is not an essential element of child molestation in the first degree;

rather, it clarifies the meaning of "sexual contact" to exclude inadvertent touching

or contact from being condemned as criminal. State v. Lorenz, 152 Wn.2d 22,

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34, 93 P.3d 133 (2004). Ajury may infer sexual gratification from the

circumstances ofthe touching itself, where those circumstances are unequivocal

and not susceptible to innocent explanation. See State v. Whisenhunt, 96 Wn.

App. 18, 24, 980 P.2d 232 (1999).

It is clear that sufficient evidence was presented at trial to support the

jury's finding that Maldonado touched G.M. for the purposes of sexual

gratification. G.M. told Isabel, B.V., and Webster that Maldonado touched her

vaginal area underneath her underwear while the two of them watched television

together. G.M. stated that it hurt because Maldonado applied pressure. When

G.M. asked Maldonado to stop, Maldonado ignored her. The evidence does not

support an inference that the touching was fleeting or open to innocent

explanation. Arational trier of fact could reasonably infer that Maldonado

touched the intimate parts of G.M. for the purpose of gratifying his sexual desire.

V

In a pro se statement of additional grounds, Maldonado contends that he

received ineffective assistance of counsel because trial counsel failed to present

any evidence or file motions on his behalf. Maldonado's claim is contradicted by

the record. Four witnesses testified on Maldonado's behalf, including an expert

witness who challenged Webster's interviewing techniques, and trial counsel filed

motions challenging the admissibility of child hearsay and the ER 404(b)

evidence. Maldonado additionally claims that trial counsel was ineffective for

failing to secure an interpreter for client meetings and for fraudulently overbilling

him for services. These claims appear to rely on facts outside the record and

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cannot be considered on direct appeal. State v. McFarland, 127 Wn.2d 322,

337-38, 899 P.2d 1251 (1995).

Maldonado further contends that the trial court abused its discretion by

permitting G.M. to testify as a witness, claiming it caused her undue stress

because ofher young age. Maldonado did not challenge G.M.'s testimony at trial.

Issues raised for the first time on appeal are not reviewable unless they

constitute "manifest error affecting a constitutional right." RAP 2.5(a)(3).

Because Maldonado's claim is raised for the first time on appeal and does not

affect a constitutional right, we decline to consider it. Maldonado's pro se claim

regarding sufficiency of the evidence merely repeats that raised by appellate

counsel and we need not further readdress it.

Affirmed.

We concur:

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