Find Legal Information

Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                  )         No. 66546-4-I
                       Respondent,
                                                  )         DIVISION ONE
                v.
                                                  )         UNPUBLISHED OPINION
 EARL BOOKERT FLEMING,
                                                  )
                       Appellant.                           FILED: June 4, 2012
                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

                                                  )

       Appelwick, J.  --  Fleming appeals his conviction for three counts of rape of a 

child.  He alleges the trial court erred in allowing evidence of a common scheme or plan

and in limiting cross-examination of the victim's mother.             Any error in admitting 

evidence of a common scheme or plan was harmless.            The trial court did not abuse its 

discretion by limiting cross-examination.  We affirm.

                                            FACTS

       In December 2008, then 14          year old T.F. went to her school nurse and 

complained that her stomach hurt.  The nurse asked her if she could be pregnant.  T.F. 

initially said no, but eventually said that her dad "comes to [her] bed," and indicated 

that he had sexual intercourse with her.  

       The nurse reported the accusation to Child Protective Services, and the police  

No. 66546-4-I/2

were notified.  Fleming was arrested when he arrived at school to pick up T.F.  
Meanwhile, T.F.'s mother, Champagne  Fleming,1 took T.F. to the hospital to get a 

pregnancy test.  The test confirmed that T.F. was pregnant.  Ultimately, T.F. and her 

mother decided to terminate the pregnancy.  

       Fleming was charged with two counts of rape of a child in the second degree, 

one count of rape of a child in the third degree, and one count of misdemeanor 

violation of a sexual assault protection order.  

       At trial, T.F. testified that Fleming abused her at three different homes, located in 

Auburn, Kent, and Renton.  T.F. lived in the Auburn home from first to sixth grade, in 

the Kent home from sixth grade to seventh grade, and the Renton home from seventh

grade until after Fleming was arrested.  

       T.F. claimed that Fleming abused her for the first time in Auburn, when she was 

11 and in sixth grade.  After the rest of the family went to sleep, T.F. left her room 

because she was hungry.  She found Fleming in the living room.  Fleming asked her to 

rub his back.  He wore only his boxers.  T.F. sat on him and rubbed his back, and then 

Fleming moved onto his back and T.F. rubbed his stomach.  At one point, Fleming 

asked T.F. to rub lower, but T.F. did not want to touch Fleming's buttocks.  Afterwards, 

Fleming told T.F. not to tell anybody about the massage.  

       The abuse slowly escalated.  When Fleming wanted a massage, he would go 

into T.F.'s room late at night, get her out of bed, and bring her into the living room with 

him.  Eventually, Fleming began touching T.F.'s breasts over her pajamas when he 

       1  To avoid confusion, we refer to Champagne Fleming as "Champagne."                  No 
disrespect is intended.

                                                   2 

No. 66546-4-I/3

came into her room.  When she told him to stop, he would stop.  That pattern continued 

for several weeks.  Eventually, Fleming had anal and oral intercourse with T.F. in the 

Auburn home.  

       T.F. also testified that Fleming had intercourse with her in the Kent and Renton 

homes.  She  claimed that Fleming would have intercourse with her in the morning 

before he went to work, when her mother and sister were gone during the day, and at 

night.  

       T.F. explained that she realized in seventh grade that what Fleming was doing 

was wrong, but she was scared and did not want to tell anybody.  At one point, she told 

Champagne that Fleming had  touched            her.  Fleming denied the allegation, and 

Champagne then hit T.F.  

       Based on a paternity test, the State's DNA (deoxyribonucleic acid) expert 

testified that there was a 99.998229 percent probability that Fleming had impregnated 

T.F. and that it was 56,000 times more likely that Fleming was the father than a random 

unrelated individual.  Fleming's DNA expert testified that the statistical model used by 

the State might be flawed where the father is related to the mother, and speculated that 

another family member could have been the father.  The State's expert responded that 

the Fleming's relationship to T.F. is taken into account in T.F.'s DNA profile.  Fleming 

also argued that his son, Corey, had not been asked to submit a DNA sample and 

could not be eliminated as the father.  But, there was no evidence that Corey abused 

T.F. or that Corey could have been the father.

       In addition to T.F.'s testimony and the paternity  test  results, the trial court 

allowed T.F.s older sister to testify that Fleming abused her one time.  K.F. is Fleming's 

                                                   3 

No. 66546-4-I/4

daughter from a different mother.  For four or five months in 2004 and 2005, K.F. lived 

with Fleming in the Auburn home.  K.F. testified that, when she was in ninth grade, 

Fleming came into her room and began giving her a massage.  K.F. was in her 

pajamas.  She claimed that Fleming touched her underneath her shirt and over her bra, 

and pulled her pants down and massaged               her over her underwear.  K.F. felt 

uncomfortable when Fleming pulled down her pants, and she told him to stop.  Fleming 

stopped.  Shortly thereafter, K.F. moved out of the home.  

       Fleming did not testify.  But, in one phone call to Champagne he said that he 

had "made mistakes."  In another call, he said, "I didn't do nothing to us.  [Y]our 

daughter did this to us."  

       A jury convicted Fleming as charged on the three rape charges, but found him 

not guilty of violation of a sexual assault protection order.  Fleming appeals.

                                        DISCUSSION

I.     Common Plan or Scheme

       We review the trial court's decision to admit evidence for an abuse of discretion.  

State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007).  The trial court abuses 

its discretion when its decision is manifestly unreasonable or based on untenable 

grounds.  Id.

       K.F.'s testimony was admitted pursuant to ER 404(b) and RCW 10.58.090.  The 

Supreme Court recently declared that RCW 10.58.090 is unconstitutional.  State v. 

Gresham, 173 Wn.2d 405, 432, 269 P.3d 207 (2012).  Thus, K.F.'s testimony could 

only have been properly admitted pursuant to ER 404(b).

       Evidence of other crimes, wrongs, or acts is not admissible to show criminal 

                                                   4 

No. 66546-4-I/5

propensity.  ER 404(b).  Such evidence may, however, be admitted under ER 404(b) to 

show a common scheme or plan to repeatedly commit similar crimes.  State v. 

DeVincentis, 150 Wn.2d 11, 20-21, 74 P.3d 119 (2003).  But, the evidence is 

presumptively inadmissible.  Gresham, 173 Wn.2d at 421.  To be admissible, the prior 

acts must be (1) proved by a preponderance of the evidence, (2) admitted for the 

purpose of proving a common scheme or plan, (3) relevant to prove an element of the 

crime charged or to rebut a defense, and (4) more probative than prejudicial.  State v. 

Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995).  Fleming argues that K.F.'s 

testimony did not reveal a common scheme or plan and that it was more prejudicial 

than probative.  

       An error which is not of constitutional magnitude, such as the erroneous 

admission of ER 404(b) evidence, requires reversal only if the error, within reasonable 

probability, materially affected the outcome of the trial.  State v. Stenson, 132 Wn.2d 

668, 709, 940 P.2d 1239 (1997).  Improper admission of evidence constitutes harmless 

error if the evidence is of minor significance when compared with the evidence as a 

whole.  State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001).  In other words, the 

inquiry is whether the outcome of the trial would have been different if the error had not 

occurred.  State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984).  

       Fleming argues that admitting K.F.'s testimony was  prejudicial to the result 

because  the other evidence was weak -- T.F.'s testimony was inconsistent                      and

Fleming's expert challenged the paternity results -- and  the prosecutor emphasized 

K.F.'s testimony at closing.  Assuming without deciding that the trial court abused its 

discretion by admitting K.F.'s testimony, the error was nevertheless harmless.

                                                   5 

No. 66546-4-I/6

       The testimony from T.F. was strong.  T.F. consistently identified Fleming as the 

perpetrator.  When her school nurse first questioned whether T.F. could be pregnant, 

T.F. revealed that her father had been having sex with her for several years.           At trial, 

T.F. testified to extensive abuse, including vaginal, anal, and oral intercourse, that 

occurred in three different homes over the course of several years.  The 

inconsistencies Fleming articulates concern only the location at which certain acts of 

abuse occurred.  For instance, when asked to provide an example of abuse that 

occurred in the Kent house, T.F. said that one time it was difficult for her to walk at 

school because of anal intercourse that morning.  Later, however, she testified there 

was no anal intercourse in the Kent house.  Similarly, T.F. described a time when she 

and Fleming had vaginal intercourse on the couch in the Kent home while Champagne 

was listening to music in a bedroom.  Later, she clarified that that incident happened in 

the Auburn home.  T.F. never wavered about the extent of the abuse, or in her 

assertion that Fleming was the perpetrator.

       T.F.'s testimony was corroborated by a paternity test that indicated that Fleming 

was the father.  The State's DNA expert, Brianne Huseby, testified that there was a 

99.998229 percent probability that Fleming impregnated T.F.  Fleming's DNA expert,

Dr. Donald Riley, suggested that the probability generated by the State was misleading 

for two reasons.  First, Dr. Riley claimed that the statistical model used by the State did 

not take into account that Fleming and T.F. are related.  But, he conceded that there is 

not much agreement on a better practice, and that he did not know of a different set of 

formulas that could have been used.  And, Dr. Huseby rebutted Dr. Riley's claim.  She 

explained that the paternity test method used does not take into account any markers 

                                                   6 

No. 66546-4-I/7

that come from the mother, T.F.   Therefore, any markers that came from Fleming 

through T.F. would not be considered.  Consequently, Dr. Huseby stood by her initial 

calculation and concluded that the fact that Fleming was the child's grandfather did not 

complicate the calculations.  Second, Dr. Riley asserted that the probabilities were 

misleading because T.F.'s brother Corey could not be eliminated as the father.  His 

position was that, where there is "possible involvement of close relatives in a case, the 

DNA profiles of such relatives should be prepared whenever feasible for eliminating

them."  But, there was no evidence that Corey or any close relative other than Fleming 

had ever had any sexual contact with T.F. Dr. Riley's assertion that Corey could not be 

ruled out as the father was not evidence that Corey actually was the father.          The DNA

evidence showed that Fleming was the father of T.F.'s child.

       The prosecutor mentioned K.F.'s testimony three times during closing argument.  

But, two of those three occasions were passing references that Fleming had "tried to do 

this to his other daughter" and that K.F. "was able to stand up for herself, stand up to 

him and put an end to it immediately before it went any further."  These arguments 

highlight how the evidence was different -- attempted with K.F., completed with T.F.,

and that K.F. was able to stop the assaults -- as opposed to being compelling 

arguments about common plan or scheme.  On the third occasion, the prosecutor 

explained why K.F.'s testimony corroborated T.F.'s testimony.  But, the prosecutor's 

statements were mere argument.  There is not a reasonable probability that the 

outcome would have been different if the testimony from K.F. was not admitted. 

       Any error in admitting K.F.'s testimony was harmless.

II.    Right to Present a Defense

                                                   7 

No. 66546-4-I/8

       A defendant has a constitutional right to present a defense, but that right does 

not extend to irrelevant or inadmissible evidence.  State v. Jones, 168 Wn.2d 713, 720, 

230 P.3d 576 (2010).  One such limitation is that no witness may state an opinion about 

a victim's credibility, because that type of testimony "invades the province of the jury to 

weigh the evidence and decide the credibility of the witness."  State v. Jones, 71 Wn. 

App. 798, 812, 863 P.2d 85 (1993).  But, when a party questions a witness about 

otherwise inadmissible evidence, it may open the door for the opposing party to do so 

as well.  State v. Korum, 157 Wn.2d 614, 646, 141 P.3d 13 (2006).  Once the door has 

been opened, the trial court has discretion to admit evidence that would have otherwise 

been inadmissible.  State v. Ortega, 134 Wn. App. 617, 626, 142 P.3d 175 (2006).

       Fleming argues that the State opened the door for defense counsel to question 

Champagne about T.F.'s credibility.  The State questioned Champagne at length about 

how often she had contact with Fleming after he was arrested.  It elicited facts about 

how often they spoke on the phone, how often they met when Fleming was out on bail, 

where they met when Fleming was out on bail, and whether T.F. was at home during 

any of the phone calls.  Ultimately, in response to a question about when Champagne 

decided to stop speaking with Fleming, Champagne said that she stopped speaking 

with him "[w]hen the DNA results came back."  Champagne also said that, after the 

DNA results came out, she decided to move the family out of the area.  

       Defense counsel then sought to question Champagne about why she left the 

area.  Specifically, defense counsel wanted Champagne to make a comment on T.F.'s 

credibility by stating that she left after the DNA results came back because she 

previously did not believe T.F.  The trial court ruled that counsel could not pursue that 

                                                   8 

No. 66546-4-I/9

line of questioning because it would constitute an impermissible comment on T.F.'s

credibility.  

       The trial court's determination correctly reflected that the State did not open the 

door for Fleming to ask Champagne to comment on T.F.'s credibility.  Fleming was 

charged with violation of a sexual assault protection order.  The State's line of 

questioning concerned Champagne's contact with Fleming while the protection order 

was in place, and was relevant to whether Fleming violated the order.  The jury could 

infer from Champagne's answers that she did not initially believe T.F., but the State did 

not directly put T.F.'s credibility at issue.  Further, Fleming was not prohibited from 

arguing such inferences from Champagne's testimony.  In fact, defense counsel argued 

at closing that Champagne's actions suggested she did not believe T.F.  The trial court 

only prohibited defense counsel from asking Champagne to expressly comment on 

T.F.'s credibility.  Doing so was not an abuse of discretion.

       We affirm.

WE CONCUR:

                                                   9